Marshall v Cooper Grace Ward[2013] QDC 205

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks a number of orders in respect of a costs assessment to be conducted pursuant to Division 7 of Part 3.4 of Chapter 3 of the Legal Profession Act 2007 (“the LPA”). Contentiously, that includes application for an order for disclosure pursuant to r 223 of the Uniform Civil Procedure Rules (“UCPR”).

2. [2]
   The costs assessment is to occur as a result of an earlier application made to this court and an order made on 11 January 2013. On that earlier application, the only issue that remained in contention was as to the selection of the costs assessor. However and pursuant to the directions of the court as to the mechanism by which that selection was to be effected, the order was made in terms of appointing Mr Michael Robert Hogan, as the assessor.

3. [3]
   That earlier order was also made expressly in reference to seventeen identified tax invoices of the respondent, issued in relation to legal work undertaken for and on behalf of the applicant. As explained in the affidavit of Ms Fitzgibbon, the applicant had first instructed the respondent in relation to an objection to a resumption of land, by Energex and a proposed application for judicial review relating to a community designation under the Sustainable Planning Act and which preceded the resumption issue. She also refers to her conduct, after she joined the respondent firm in late 2010, of a file relating to matters number 4243 of 2011 and 1735 of 2011 in the Planning & Environment Court and in respect of enforcement proceedings brought by the Sunshine Coast Regional Council, as to issues relating to the lawful use of the applicant’s land.^[1]

4. [4]
   It was agreed between the parties that the court should now make a further order to include an additional nine tax invoices in the assessment to be conducted by Mr Hogan, on the basis that they had been previously overlooked.

5. [5]
   Although the evidence of Mr May^[2]was to the effect that (despite there being some unresolved differences between the parties as to the precise figures and notwithstanding acknowledgement of having received payment from the applicant of $696,542.40) the respondent claims that there is an amount of $78,702.67, remaining as unpaid. It is, however, common ground that the total amount of the costs claimed in the invoices the subject of the assessment (including those to be formally added by further order), is $581,235.26.^[3]

6. [6]
   In respect of the unpaid costs, the respondent continues to assert the entitlement to a lien over the applicant’s file. That is, the respondent exercises a right to retain possession of its former client’s file in order to secure the payment of the outstanding claimed costs and the applicant accepts this entitlement.

7. [7]
   Although the assertion of that right is connected to and has some potential to impact upon the dispute between the parties, for the reasons that follow, it may be seen to be largely incidental to the issues in contention. Primarily this is because it is common ground that:

1. (a)
   The applicant has been previously and effectively provided with a copy of all of the correspondence and court documents brought into existence in the course of the respondent acting as his solicitors;^[4]and

2. (b)
   What the applicant seeks is access to all of the material that will be before the assessor for his consideration, including all material which might be retained by a solicitor, even if a client’s file was released upon full payment of charges (such as internal file notes).

Further, the respondent did not seek to place particular store in the lien, in resisting this application.

8. [8]
   In those circumstances, UCPR 223 must, in any event, be necessarily confronted and particularly the requirements in UCPR 223(4)(a), that the order for disclosure sought by the applicant, “may be made only if there are special circumstances and the interests of justice require it”. Those requirements were the subject of consideration in Julstar Pty Ltd and Anor v Lynch Morgan Lawyers^[5]also, as the applicant points out, in circumstances where the respondent solicitors had claimed a lien over their former client’s file.

9. [9]
   As recognized in that decision and by the applicant here, in the absence of court direction, UCPR 209(1)(c) excludes the operation of the provisions of the UCPR, relating to disclosure. As occurred in Julstar, such direction may be achieved by exercise of the discretion given to the court in UCPR 223. In that regard, the applicant points out that in Julstar the outcome in the exercise of that discretion, was based upon determination that the interests of justice (as referenced to an identified need for limited inspection of the retained documents in order to alleviate the disadvantage of that applicant in the examination of relevant evidence before the court, notwithstanding the asserted lien) also, in the circumstances of that case, satisfied the need for special circumstances. Accordingly and also in recognition of the approach in that case and having regard to the authorities discussed in respect of the competing considerations where a solicitors lien is exercised, in circumstances where that impacts upon a dispute between those solicitors and their client^[6], the contentious order sought by the applicant is that:

“Pursuant to r 223 of the UCPR, within 21 days, the respondent provide access to the applicant and/or the applicant’s representative to inspect the respondent’s files relevant to the costs to be assessed pursuant to the orders of Long SC, DCJ dated 11 January 2013 and paragraph 1 hereof for the purpose of enabling the applicant to make further submissions in accordance with the directions made by the Costs Assessor on 28 January 2013.”

10. [10]
    That order is sought in the context that:

1. (a)
   In an affidavit sworn by the applicant on 4 December 2012, for the purposes of his earlier application for a costs assessment, the applicant deposed to a list of objections, which had been prepared by his present solicitors^[7]; and

2. (b)
   It was common ground that the effect of those objections and the order consequently made on 11 January 2013, because of the generality of some matters raised and despite there also being many specifically itemised objections, was to require an assessment of the whole of the legal costs contained in the identified invoices and that such an assessment proceeds pursuant to s 341 of the LPA.

11. [11]
    Particularly, in the light of the decision in Julstar, the respondent expressly did not seek to place much reliance upon the fact of the recognised lien, as a factor in resistance of this application. However, it does remain as a relevant circumstance and in Julstar and after a review of relevant authorities^[8]some uncertainty as to the significance of the lien emerged. However, the approach taken in Julstar, in particular reference to similar circumstances to those pertaining here, where the solicitors asserting the lien are the responding party to the dispute in respect of which the disclosure was sought, was to look to the requirements of the UCPR 223 and if those requirements were satisfied then the existence of the lien was not seen as an impediment to the allowance of limited disclosure, by way of inspection of relevant documents.

12. [12]
    That approach may be seen as one of more general application and applicable to the circumstances pertaining here, notwithstanding that, as the respondent correctly pointed out, the issues arose in Julstar in the context of a dispute in respect of an antecedent issue, as to whether the discretion of the court would be exercised to order that there be an assessment of costs. Here there was no dispute as to the exercise of that discretion and the current dispute is one to be resolved in the course of the costs assessment which has been ordered by the court and which may be the subject of subsequent review by the court.^[9]

13. [13]
    Also and whilst I proceed upon the basis that there are some documents of the applicant which are subject to the lien and to which the applicant does not otherwise have access, it was neither necessary to nor made precisely clear on this application, as to which documents might fall into that category. This was because it was common ground that the application was also substantially directed at documents which remained the property of the respondent and which are not discloseable, without agreement or the order of the court pursuant to UCPR 223.

The Circumstances

14. [14]
    The circumstances which have precipitated this application may be briefly described, as follows:

1. (a)
   Consequently to the previous order appointing Mr Hogan as assessor, he wrote to the parties and after noting that he had received, from the applicant’s solicitors a copy of the affidavit of the applicant, sworn on 4 December 2012 and that he proposed making arrangements for uplifting the respondent’s files “in due course”, he made the following “initial” directions in relation to his assessment:

“1. I direct that if either party wishes to make further written submissions or a response to the objections contained in the Affidavit of the Applicant, such submissions or responses should be delivered to me by close of business on Tuesday, 12 February 2013.

2. I direct that any submissions, responses or other relevant correspondence during the course of the assessment delivered to me should on each occasion be delivered or copied simultaneously to the other party.

3. I direct that the costs assessment will be completed on the papers without an oral hearing.

4. For the purposes of the costs assessment, I direct that all relevant submissions, responses or other relevant correspondence be forwarded by email to me at the above email address.”^[10]

2. (b)
   Following that, there was an exchange of correspondence between the solicitors and by the applicant’s solicitor with Mr Hogan. The applicant sought the opportunity for his own costs assessor to inspect the file with Mr Hogan.^[11]By letter dated 31 January 2013 the respondent indicated preparedness to allow inspection of the file but maintained objection to the file being inspected in the presence of Mr Hogan. It was contended that “all submissions in relation to the matter should be in writing so that each side has an appropriate opportunity to respond.”^[12]Subsequently and on 4 February 2013, the respondent wrote again, the effect of which was to withdraw the previous concession and agreement to the inspection of the file. In part that letter asserted:

“We had responded to the request in your 30 January 2013 letter on the assumption that it was ordinary practice for clients seeking assessment of their bills to be permitted to inspect their files in a way akin to disclosure in ordinary proceedings.

…

In any event, the costs assessor is not confined to considering your objections since RR706 and 722 of the Uniform Civil Procedure Rules 1999 (Qld) have no application to an assessment under the Legal Profession Act 2007 (Qld).

The costs assessor has determined that he will conduct the assessment on the papers. We will arrange to have our entire file delivered to him. It seems that it is now a matter for the costs assessor to consider your objections to our bills.

In the circumstances we do not see how inspection of the file will assist with the assessment process. Accordingly, we do not agree to a costs assessor appointed by your client inspecting the file.”^[13]

15. [15]
    Subsequently and after further correspondence, including a letter sent pursuant to r 444 of the UCPR by the applicant’s solicitors and a response to that by the respondent, this application was brought.

The Contentions

16. [16]
    The applicant contended that the discretion to make an order under UCPR 223 should be exercised on the basis that there would otherwise be a denial of natural justice, in the loss of opportunity to put material before the assessor that is relevant to the determination of the question of reasonableness of the claimed costs. This was said to be manifested by an inability to “respond” (or it might be said “address”) all of the material that will be before the assessor, because of absence of knowledge of it. In this regard it was emphasised that should it transpire to be necessary for a review by the court of the cost assessor’s decision, pursuant to UCPR 742, then pursuant to UCPR 742(5) and unless the court directed otherwise:

“(5)  On a review, unless the court directs otherwise –

1. (a)
   the court may not receive further evidence; and

2. (b)
   a party may not raise any ground of objection not stated in the application for assessment or a notice of objection or raised before the costs assessor.”

17. [17]
    The respondent focused first upon the effect of UCPR 209 in providing that, without court direction otherwise, Chapter 7 of the UCPR (which provides for and regulates the disclosure obligations of parties to proceedings) does not apply to a proceeding started by application, as this costs assessment was. Next attention is drawn to the exercise of discretion in UCPR 223. It was emphasised that the preconditions to such an exercise of discretion, as set out in UCPR 223(4)(a), disjunctively require both special circumstances and the interests of justice. Further, the position that no such justification existed here, was maintained in particular reference to the role to be performed by the appointed costs assessor and it was common ground that he would be required to consider the entirety of the tax invoices which are to be assessed, in accordance with the criteria set out in s 341(1) of the LPA. That is:

“(1)  In conducting a costs assessment, the costs assessor must consider-

1. (a)
   whether or not it was reasonable to carry out the work to which the legal costs relate; and

2. (b)
   whether or not the work was carried out in a reasonable way; and

3. (c)
   the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 340 applies to any disputed costs.”

18. [18]
    As to sub-paragraph (c), it is sufficient to note that an effect of s 340 of the LPA is that, in the absence of specified exceptions, the amount of any disputed legal costs is to be determined by reference to the provisions of the relevant costs agreement (such agreements being required by the LPA). Otherwise, s 341(2) sets out specific criteria that a costs assessor may have regard to, in considering what is a fair and reasonable amount of legal costs.

19. [19]
    The respondent sought support for its position as to the role of the costs assessor and the absence of any need for the applicant to have access to the retained file, in the evidence of Mr Douglas Anthony Kerr, an experienced and approved costs assessor under UCPR 743L and the legal practitioner, director of QICS Law, costs consultants.

20. [20]
    Relevantly and in response to the questions posed for him, by the respondent, Mr Kerr’s unchallenged evidence was:

“… I say it is my understanding that the ordinary practice in Queensland Courts that a party (with respect to inter-parties assessments) or a client (with respect to assessments under the Legal Professional Act Qld (Q) 2007 [LPA]), is not given and does not have access to the solicitor’s file (of the party with the costs order), for the purpose of preparing objections, or preparing submissions to be used in connection with the costs assessment.

… I say that that in my experience in the preparation of objections to a costs statement or bill, it is not necessary to have access to the file of the party whose costs statement or bill is being assessed to enable objections to be prepared.

… I say that in my opinion, it is not necessary for Mr Marshall’s solicitors to have access to his file with regard to the material that the respondents provided to Mr Marshall during the course of the proceedings.

The costs assessor appointed by the court in this matter has directed that the costs are to be assessed on the papers without oral hearing. Mr Marshall and his solicitors are free to make objections or submissions to the costs assessor in relation to the material provided to Mr Marshall by the respondent. Though R 706 does not apply to assessments of costs under the LPA and there is no statutory entitlement to make objections, the costs assessor is likely to consider objections submitted by Mr Marshall in relation to such material…, and without being restricted by R 722, which does not apply.”^[14]

21. [21]
    The references to UCPR 706 and 722 are to rules found in Part 3 of Chapter 17A of the UCPR, which part is headed:

“Assessment of costs other than under the Legal Profession Act 2007”

However, it can be noted that pursuant to UCPR 743I, some of the rules set out in that part are made referable to an assessment under the LPA. One such rule, picked up by UCPR 743I, is UCPR 720, which relevantly provides:

“(1) A costs assessor appointed to carry out a costs assessment is to decide the procedure to be followed on the assessment.

3. (2)
   However, the procedure must be—

1. (a)
   appropriate to the scope and nature of the dispute and the amount in dispute; and

2. (b)
   consistent with the rules of natural justice; and

3. (c)
   fair and efficient.

…

3. (4)
   Without limiting subrule (1) or (2), the costs assessor may decide to do all or any of the following—

1. (a)
   hear the costs assessment in private;

2. (b)
   carry out the costs assessment on the papers without an oral hearing;

3. (c)
   not be bound by laws of evidence or procedure applying to a proceeding in the court;

4. (d)
   be informed of the facts in any way the costs assessor considers appropriate;

5. (e)
   not make a record of the evidence given.”

Discussion

22. [22]
    It must immediately be noted that the full ambit of the options open to a costs assessor under UCPR 720(4) must be considered in the context of the powers allowed to an assessing registrar under UCPR 714 and not available to another costs assessor, unless given by court order pursuant to UCPR 715^[15]. That includes the power pursuant to UCPR 714(f), to give “directions” about the conduct of the assessment process. However and although “directions” were, in this instance, issued by the costs assessor, no point was taken about this on this application and it may be seen that what has occurred is consistent with the communication of the costs assessor’s decision as to the procedure to be followed on the assessment and as to how he proposes to be informed of the facts, in the context of carrying out an assessment on the papers.^[16]

23. [23]
    The emphasis that the applicant puts on the requirements of natural justice^[17], can be noted to be also specifically incorporated into a costs assessment process by UCPR 720(2)(b). However, and as also appears to be specifically contemplated in UCPR 720(2)(a) and (c), the application of such principles, or at least the extent or manner of application, may be dependant upon particular circumstances.

24. [24]
    Accordingly, bare reference to the requirements of natural justice does not determine which of the principles relevant to that requirement are applicable or as to how they are to be applied. It has been recognised that:

“The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”

and:

“What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances.”^[18]

25. [25]
    However, an aspect of the principles of natural justice, which is usually considered to be central to the requirement, is that a person affected by a decision must be told of material prejudicial to his or her case and given a fair opportunity to be heard in response to that material.^[19]In a decision specifically referred to in the affidavit of Mr Kerr^[20], this aspect of the requirement of procedural fairness, was recognized as applicable to a costs assessment.

26. [26]
    The respondent’s emphasis on the expertise and role of the assessor in the assessment process does not necessarily answer this problem. For instance, in the course of argument the respondent conceded that where material such as a file note is contained in a solicitors file and is relied upon to support a particular item, it may be appropriate, in an assessment where the parties are before the assessor, for the attention of the client to be drawn to that note by the assessor, if it is to be relied upon in the assessment. Neither was any solution offered by the respondent’s assertion that although allowed by the assessor here to make submissions, its intention was not to do so but rather to simply deliver its files, when called upon to do so. That is because the obvious intention is to rely upon the contents of that file, including any undisclosed material (such as file notes), to seek to justify the charges that have been billed and in a situation where the review is to be conducted upon the papers, this would not advance the situation in respect of reliance by the assessor on any such material against the interests of the applicant.

27. [27]
    However, and on the other hand, it is not entirely easy to obtain a clear picture of what is likely to be engaged in the process that has been initiated by the applicant. The evidence provided by Mr Kerr drew particular attention to the observations of McGill SC DCJ in Southwell v Jackson^[21]. After drawing attention to the fact that the assessment with which his honour was concerned, was under Part 4 of Chapter 17A of the UCPR and the LPA, rather than Part 3, and therefore the same type of assessment to be conducted here, he said:

“There is nothing in the Act which requires the assessment process to be limited to matters specifically raised in a notice of objection, and r 722 does not apply to an assessment under part 4: r 743I. Traditionally a taxing officer taxing a bill examined the whole bill and considered every item, although no doubt in practice the fact that there was no particular objection to an item would ordinarily have some practical effect on the extent of that consideration. It was always open to the taxing officer to disallow or reduce an item if it were thought to be unjustified. I think that the fact that there is no limitation on the scope of the assessment in the Act is of particular importance when considering an assessment under the Act, and in my view the obligation of a costs assessor under the Act is to have some regard to all matters in the bill, at least to the extent of picking up an error of this nature.”

28. [28]
    In that case, those observations were made in respect of consideration of “the question of whether the costs assessor can take into account anything which is not raised in an objection”.^[22]It is contended by the applicant here, that the sense of his Honour’s observations are that objections raised by the applicant are likely to be considered by the assessor and further that not only is there no preclusion of specific objections being raised, but the problem confronting the applicant will be the absence of any effective remedy of review of the assessment in the absence of a point having been raised with the assessor.^[23]

29. [29]
    It is necessary to put these contentions in some further context. First and whilst it can be noted that s 335(1) of the LPA allows that:

“(1) A client may apply for an assessment of the whole or any part of legal costs.”;

and that s 341(1) is also couched in terms of providing criteria for “conducting a costs assessment”, s 335(1) of the LPA requires that such an application is to be made in the way provided in the UCPR and UCPR 743A(5)^[24]requires that the affidavit which must accompany the application for such a costs assessment:

“…

1. (a)
   State whether the applicant disputes or requires assessment of all or what part of the costs; and

2. (b)
   If the applicant disputes all or part of the costs, state the grounds on which the applicant disputes the amount of the costs or liability to pay them.”

30. [30]
    In Julstar, an issue arose as to the scope of review that was sought, because of the absence of statement of specific grounds of objection in the affidavit accompanying the application. In determining that it was not necessary for any statement of specific grounds, in order to found an application for a costs assessment, attention was paid to the apparently deliberate choice of language in UCPR 743A(5), in treating “disputes” and “requires assessment of”, as separate notions. Accordingly, it was concluded in that case, that an assessment of all or part of the costs may be effected without stating any grounds of dispute.^[25]

31. [31]
    That distinction and conclusion is consistent with the contention by the respondent here, that, as a matter of practice, a costs assessment under the LPA will occur just for the asking and if requested in respect of the whole of the bill, require the assessor to traverse all items in the bill.^[26]However, that position does not address the alternative which is expressly contemplated by UCPR 743A(5), as open to a client, in terms of disputing all or part of the costs, by stating specific grounds upon which there is dispute as to “the amount of the costs or liability to pay them”. Nor does that position address the legitimate concern of the applicant here, as to the potential effect of UCPR 742(5), in the event that it is necessary to seek court review of the costs assessment. As is correctly pointed out by the applicant, the potential reach of UCPR 742(5) is not only in respect of evidence not before the assessor and grounds of objection not stated in any application for assessment or notice of objection, but also extends to grounds of objection not raised before the costs assessor.

32. [32]
    The broad expression of the requirement to state grounds in UCPR 743A(5), may be contrasted with the more explicit requirement for a Part 3 assessment, as set out in UCPR 706(2)(c), being for each obligation to:

“concisely state the reasons for the objection identifying any issue of law or fact the objector contends a costs assessor should consider in order to make a decision in favour of the objector.”

However, there is no reason for concluding that such an approach by an applicant is not at least prudent in order to satisfactorily address the concerns of s 341 of the LPA and UCPR 742(5) and that is effectively what the applicant seeks to do here.

33. [33]
    Accordingly and in respect of the application originally filed for this costs assessment, the applicant filed an affidavit in which he sought the appointment of a costs assessor to “assess the costs” in the then specified tax invoices.^[27]In that affidavit, it was stated:

“21. I have requested my solicitors to go through the objections and I have been provided with a list of objections prepared by my solicitors which is exhibited hereto and marked ‘MRM-2’.”^[28]

34. [34]
    In the list of objections document (marked “MRM-2”) and under the heading “General Objections,” a number of issues are raised, in the general sense that they have potential to apply respectively, across many, if not all, of the items in the bills to be assessed. For instance:

1. (a)
   It is asserted that in the context of the relevant costs agreements, there has been a failure to have regard to the “scope” of the work undertaken by each team member and a consequence is that the full rate for each team member has been charged, without reduction, irrespective of the level of skill actually involved in the task. For example, it is asserted that there has been billing at the applicable rate for a partner or other lawyer, without reduction for tasks that did not require “special legal skill or knowledge” and that this is unreasonable and excessive;

2. (b)
   That charging has occurred for correction of errors in materials produced, going beyond appropriate supervision by more senior lawyers;

3. (c)
   Unreasonable charging has occurred for time spent in consideration of material multiple times, by different team members;

4. (d)
   Tasks that should have been completed on a supervised basis, by more junior lawyers, in accordance with the client agreement, had been performed and charged at the rates of partners and associates;

5. (e)
   Numerous telephone calls are billed at the rate appropriate to the maker of the call, when the purpose and appropriate skill level required for the call is not disclosed; and

6. (f)
   Barrister’s fees have been charged without any itemised billing of them.

35. [35]
    Then and after asserting that despite providing itemised bills at the applicants request, the respondent has refused to provide any further details as requested by the applicant, the applicant then set out “a number of specific objections to the legal costs based on the limited detail provided”. The applicant directs attention to the fact that in respect of 159 such specific objections, some 46 items specifically referred to the need for further information. Further, the applicant refers to some further but incomplete disclosure of additional material in response to a few of those instances, in the material filed on this application.^[29]It is justifiably asserted that this disclosure tends to demonstrate the need for the fuller disclosure sought by the applicant and so much may be accepted by the capacity of that material to demonstrate how reference to the detail and sequence of the solicitor’s files, including relevant file notes, may be necessary and provide context for considering particular objections.

36. [36]
    However, the underlying question remains as to whether it is actually demonstrated that there is some need for broader disclosure in the nature of access to the solicitor’s files, in order to provide procedural fairness or natural justice to the applicant. Whilst not attempting to limit consideration just to these categories of objection, it can be noted that there are a number of objections made by the applicant where it is more obviously likely that file notes and other documents might be expected to provide particular context in the solicitor’s file, such as to potentially play a role in the resolution of a particular issue. Those instances particularly relate to objections raised in respect of:

• Charges for time spent in reading material and preparation of letters, emails and other materials;
• Charges for time spent on what are asserted to be various unspecified tasks;
• Charges in respect of the attendance of multiple lawyers at conferences with counsel; and
• Charges for time spent in preparation of briefs to counsel.

37. [37]
    Having regard to the considerations set out in s 341(1) of the LPA, it can be seen that in addition to any application of the expertise of a costs assessor, this assessment is likely to involve the need to have regard to underlying facts, including facts which may be in dispute. Such a prospect is anticipated by the provisions in UCPR 720(4)(c)(d) and (e), irrespectively of the engagement of the powers set out in UCPR 714(a) and (b), by order pursuant to UCPR 715. Further support for the contemplation of such issues or questions, is that pursuant to UCPR 717, a costs assessor may, having decided that he or she should not decide an issue or question, refer the issue or question to be decided by the Court and although not engaged on the initial application to this Court for this costs assessment, UCPR 743G(2)(d) provides a mechanism for the early identification of the appropriateness of trying any question before the costs are assessed. At the very least, it would appear that it will be become necessary for regard to be had to the factual basis upon which certain charges have been made, particularly by reference to the detail recorded in the solicitor’s files.

Conclusions

38. [38]
    Accordingly, not all of the issues expressly raised or that are sought to be raised in this assessment, are such as will simply involve the application of the costs assessors expertise to an examination of the bills, in the context of the files maintained by the solicitors.

39. [39]
    In these circumstances, the obligation on the costs assessor to adopt procedures consistent with the rules of natural justice and therefore to provide procedural fairness to the parties and particularly the applicant, is likely to require attention to and therefore disclosure of any material in the solicitor’s file which is particularly relevant to the assessment. However, the assessment is to be conducted on the papers and the only opportunity for the engagement of the parties with the material to be considered by the assessor (in addition to what has already been raised by the applicant and the contents of the solicitor’s file itself) will be in the written submissions which he has authorised.

40. [40]
    As has been noted and quite apart from any consideration of the exercise of any lien, disclosure for these purposes is not provided for under the UCPR and unless agreed between the parties, may only be ordered if the requirements of UCPR 223(4)(a) are satisfied. In that regard, I proceed upon the basis that both the requirements of special circumstances and interests of justice are to be established but and as the approach in Julstar is to be properly interpreted, it is not necessary that the requirements be regarded as mutually exclusive or necessarily to be concluded from separate considerations. That is, the same circumstances or considerations may provide a basis for concluding that each requirement is satisfied and whilst it might less evidently work the other way, a conclusion that it is in the interests of justice for disclosure to occur may also be regarded as a relevant consideration to the issue of special circumstances.

41. [41]
    In the end, there is a discretion to be exercised, having regard to the threshold questions and that exercise of discretion, including consideration of the threshold issues, will necessarily be informed by the particular contextual considerations, including the extent and nature of disclosure that is sought and any particular impacts in terms of cost and or inconvenience which will be occasioned by such an order. Such an exercise of discretion is also to be informed by the statement of philosophy or purpose of the UCPR and of the overriding obligations of the parties and the court under these rules, as set out in UCPR 5. In particular, regard is required to the objective of “just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”.^[30]

42. [42]
    In this case the particularly relevant circumstances are that:

1. (a)
   There is to be a court ordered costs assessment, in which the exercise of the assessor’s function will necessarily include reference to the solicitor’s file, which contains materials not presently known to or available to the applicant;
2. (b)
   As has been demonstrated by some instances of further disclosure of materials by the respondent in this application, that assessment is likely to be influenced by detailed consideration of the solicitor’s files and notations that may be reasonably expected to be instrumental in understanding the file and accordingly the charges made for work done on that file;
3. (c)
   That assessment is to be conducted on the papers and with allowance for further written submissions by the parties, in circumstances where the materials filed by the applicant for the purpose of obtaining an order for the assessment to occur, has identified particular issues to be considered and in a number of instances, a perceived need for further information to be obtained from the solicitor’s files, which perception may be supported by the availability to the applicant of an option of raising particular objections or disputes and where in any review of the assessment, the applicant may be limited to the grounds so raised. And where such examination as is presently possible, is indicative of a potential need for opportunity to be heard as to such material;
4. (d)
   There has been no suggestion that the limited disclosure sought by the applicant creates any particular consequence to be considered in the nature of costs or inconvenience and to the extent that there may be, as a result of any such order, an impingement on the respondent’s rights in respect of any lien over any part of the materials to be disclosed, the respondent’s possessory rights to that material are not directly infringed and this is not an instance of the applicant seeking to otherwise derive the benefit of the unpaid work of the respondent, without paying for it or giving security for such payment; and
5. (e)
   Considerations of efficacy and expediency favour disclosure, in order to facilitate the applicant’s submission to the assessor.

43. [43]
    Accordingly, the circumstances of this case are sufficient to warrant the conclusion that to the extent sought by the applicant, there are both special circumstances and it is in the interests of justice for limited disclosure to occur. As there has been nothing raised as to any further limitation of such disclosure or the circumstances in which it should occur, there will be an order pursuant to UCPR 223, in the terms sought by the applicant. In addition there will be the agreed order, to add the overlooked Tax Invoices to the assessment.

44. [44]
    As far the question of costs of and incidental to this application are concerned, there does not presently appear to be any reason as to why there should not be an order in favour of the applicant. However, I will further hear the parties as to any additional orders.