Casey v Quabba[2005] QSC 356

SUPREME COURT OF QUEENSLAND 

1. On 7 March 2005 the plaintiff’s solicitors filed a cost statement seeking the Registrar’s assessment of the plaintiff’s costs on an indemnity basis pursuant to an order of this court made on 11 November 2004. On 26 April 2005 the second defendant (hereinafter “the defendant”) filed objections to the cost statement identifying disputes as to a number of the charges. The Registrar, pursuant to r 706(3) of the Uniform Civil Procedure Rules (UCPR), referred for the court’s consideration three issues arising from the application for Assessment of Costs.  Those issues are:-

1. The validity of the costs agreement;

2. The quantum of counsel’s fees; and

3. The hourly charge rate by solicitors.

2. The parties agree that the court should firstly determine the validity of the costs agreement. If the cost agreement is found to be void, the defendant contends the solicitors’ hourly rate will be determined in accordance with the Scale of Costs – Supreme Court (Schedule 1 to UCPR) (“the scale”). The plaintiff contends upon such an outcome that the assessment of the solicitors’ hourly rate and the quantum of counsel’s fees remains a matter for the Registrar, having regard to the fact that the assessment is to be done on an “indemnity basis”. The parties seek that the issue be resolved by giving directions to the Registrar.

3. The second issue – the quantum of counsel’s fees – turns upon the decision of whether the proceeding could be properly regarded as a speculative matter thereby justifying a 50% uplift in the usual fees.

Relevant rules and statutory provisions

4. Rule 704(3) UCPR provides:-

“(3)  When assessing costs on the indemnity basis, the registrar must allow all costs reasonably incurred and of a reasonable amount, having regard to –

1. the scale of fees prescribed for the court; and

2. any costs agreement between the party to whom the costs are payable and the party’s solicitor; and

3. charges ordinarily payable by a client to a solicitor for the work.”

5. It is seen from the above that the Registrar is not bound either by the scale nor any cost agreement. The Registrar’s obligation is to allow costs “reasonably incurred and of a reasonable amount”. The relevant considerations in such a task are manyfold and certainly much more extensive than the three matters identified in the rule. Matters such as the intellectual and physical capacity of the client to give instructions, the location of the parties and the level of cooperation between them (to name but three) would impact upon the amount of the charge. The impact of the costs agreement and the “charges ordinarily payable” on a registrar’s assessment is simply part of the overall discretionary task of fixing “a reasonable amount”. In this regard the remarks of the Chief Justice in Bottoms v Reser^[1] are instructive.  See also Henley v State of Queensland.^[2]

6. By contrast the assessment of costs on a standard basis is, by virtue of r 703, limited to “all costs necessary or proper for the attainment of justice”. The item by item allowances are fixed by the scale alone. Thus the Registrar’s discretion is much constrained.

7. The term “costs agreement” is not defined in UCPR but has been held to be a reference to that part of a client agreement relating to costs which must be entered into pursuant to Part 4A of the Queensland Law Society Act (QLSA).  See Parker v Borg.^[3] For convenience I will refer to the subject agreement as “the agreement”.

8. For the purpose of QLSA the term “costs” includes disbursements. The term “fees” for work of a practitioner or firm means charges other than costs. The requirement that a solicitor and a client enter into an agreement pursuant to the QLSA is set out in subsections (2) - (5) of s 48 as follows:-

“(2)  Within a reasonable time after starting work for a client, a practitioner or firm must make a written agreement with the client expressed in clear plain language and specifying the following matters –

1. The work the practitioner or firm is to perform;

2. The fees and costs payable by the client for the work.

(3)The fees and costs payable by the client for work must specify –

1. a lump sum amount; or

2. the basis on which fees and costs will be calculated (whether or not including a lump sum amount).

(4)The notice in the schedule must be completed by the practitioner or firm and given to the client, together with a copy of any scale for the work provided under an Act, before the client signs the client agreement.

(5)The client agreement must not be inconsistent with the notice in the schedule.”

Relative to those requirements, section 48F provides:-

“48F(1)  If a client agreement to which s 48 applies does not comply with that section, the client agreement is void.

(2) If a provision is included in a client agreement and inclusion of the provision is prohibited by this part, the provision is void.”

Also section 48I provides:-

“48I(1) The maximum amount of fees and costs a practitioner or firm may charge and recover from a client for work done is –

1. an amount calculated in accordance with the client agreement between the practitioner or firm and the client for the work; or

2. if there is no client agreement and there is a scale for the work provided under an Act – an amount calculated in accordance with the scale; or

3. if there is no client agreement and there is no scale for the work provided under an Act – an amount assessed as a reasonable amount for the work by a tribunal costs assessor.” (my emphasis)

9. It is noted from the terms of these sections that a client agreement is void if it does not comply with s 48. The agreement could be void for other reasons by application of the law of contract (e.g. fraud, incapacity etc). But invalidity because of non-compliance with s 48 contemplates only three things:-

1. Written agreement specifying the work and fees and costs.

2. Specification of cost basis – lump sum or calculated amount.

3. Prior delivery of a completed notice, the terms of which are not inconsistent with the schedule.

10. The obvious purpose of these statutory requirements is the protection of a solicitor’s client. The rationale for this was stated by Ipp J in Brown v Talbot and Olivier^[4] as follows (at p 76):-

“It is worth repeating that the need to ensure that no person shall be denied access requires that there should be a reasonable limit to fees charged by legal practitioners.  That need is recognised by the legislature on behalf of the community; hence the provisions of the Act governing the charging of fees, and the limit imposed by the statutory Scale. 

The ability of legal practitioners to charge and recover fees is accordingly significantly qualified; the qualification results from the nature of their chosen profession.  Conversely, that qualification confers a significant benefit upon the members of the public who retain the services of legal practitioners.”

11. While the broad purpose of the statutory is the protection of the public, the impact of section 48I concerns only the relationship between solicitor and client. It determines how the maximum amount of fees and costs recoverable from a client will be determined.  If there is a dispute as to amount of fees and costs, the assessment will be undertaken by a tribunal costs assessor pursuant to Division 6A of the QLSA.  A client by asking such an appointment puts beyond question the validity of the costs agreement (s 6ZB). Nor could an appeal to the Court from the tribunal assessor test the validity of the agreement.  Such an appeal is limited to the issue of reasonableness of fees and costs (s 6ZF). 

12. The statutory terms do not contemplate the rights and obligations of persons other than the parties to the agreement. Specifically they do not contemplate rights of third parties involved in litigation with the client. Nor are there any express terms whereby any assessment of fees and costs by a tribunal costs assessor can be said to bind the Registrar.

Preliminary issue – standing

13. Mr Griffin of Queen’s Counsel for the plaintiff argues that the role of the Registrar is simply to satisfy himself that there is a costs agreement. If the validity of the agreement is not challenged by the parties to it, then that is the end of the matter. The defendant has no standing to test the validity of the agreement.

14. The defendant asserts that it has standing to test the validity of the agreement because it affects its financial interests. If the agreement is found to be void, the maximum amount of fees and costs incurred by the client – and thus what the defendant will be required to pay – will be assessed only in accordance with the rates of the Supreme Court Scale. Mr Couper of Senior Counsel for the defendant referred to Buckley v Tutty^[5] as an example of a situation in which a direct affect on financial interests gave standing to a claimant to challenge an arrangement to which he was not a party.  The case concerned a professional footballer retained by a club who sought to transfer to a different club.  He was not bound to the club contractually but the relevant transfer rules within the New South Wales Rugby Football League effectively prevented his registration to play with the new club.  Mr Couper referred particularly to pp 380-1 of the judgment which concluded with the statement, “we would add that even if the respondent had been a stranger to these organisations he would have had a right to relief.”^[6]

15. Both Counsel referred to two prior decisions of this Court, National Bank of Australia Limited v Clanford Pty Ltd^[7] and Herald v Worker Bee (Brisbane) Pty Ltd^[8] in which the question of validity of a costs agreement was raised incidentally. The defendant argues that because the court in each case was prepared to consider the validity of a cost agreement it is a proper consideration to undertake on the assessment of costs.  In Clanford, the assessing Registrar had determined that the relevant cost agreement was invalid and directed a costs statement be prepared on a basis reflecting that decision.  The Court was asked to review that decision.  The jurisdiction to do so was founded upon r 706(1)(l) of UCPR, s 118E(1) of the Supreme Court Act 1991 or the inherent jurisdiction. Upon review the Court found that the costs agreement was valid.  The point as to the extent to which an invalid agreement could be regarded was not considered.

16. In Herald, the Court was asked to determine three questions in a review of assessment proceedings still being undertaken by the Registrar.  The first question inquired whether the failure to deliver a copy of the UCPR scale of fees with a copy of the schedule under the Act rendered the costs agreement invalid.  Fryberg J determined that it did not.  It was then unnecessary to consider the question whether the Registrar could consider a costs agreement which he found to be void.  

17. In each of these cases the assessing Registrar had made a determination that a client agreement was invalid and the Court was asked to review that decision. Thus there was both a jurisdictional basis and a purpose for so doing. In neither case was there any discussion about the issue of the standing of a third party affected by the order to challenge the costs agreement of the other parties.

18. In Henley v State of Queensland (supra), McGill DCJ held that it was unnecessary for a registrar to consider whether a cost agreement complied with the QLSA.  His reliance upon Parker v Borg in reaching this conclusion was criticised by counsel for the defendant.  What Parker determined was that the agreement might be spread across more than one document issued at different times.  Inferentially the Chief Justice there appears to have come to the view that once the registrar was satisfied there was a costs agreement it was unnecessary for the registrar to determine in detail the scope of the agreement.  In Parker there was no cause for a consideration of the validity of the agreement.

19. The starting point in the resolution of this issue is to reflect upon the nature of the agreement. Apart from other vitiating grounds, a costs agreement remains binding upon the client unless and until the client has it set aside for being non-compliant with the statutory provisions. That proceeding would be a matter for a court and not for the determination by a registrar. Such a determination in a formal sense would be beyond the scope of an assessing registrar’s power on a costs assessment.

20. The defendant is not a party to the costs agreement nor is it a person entitled to benefit under the agreement. It has no right in contract law to enforce the agreement or test its validity. Trident General Insurance Co Limited v McNiece Bros Proprietary Limited.^[9] 

21. The circumstances in which a third party can challenge a contract are limited. An obvious one is where there is a contravention of public policy as identified in Buckley (supra).  Other examples listed in “The Laws of Australia”^[10] include conduct unlawful in itself, conduct injurious to good government or foreign relations, conduct injurious to the proper working of justice or attempting to oust the jurisdiction of the courts.  None of these matters have relevance here.  The alleged invalidity of the agreement relates to its non-compliance with s 48 of the QLSA and not to any unlawful conduct on the part of a party to the agreement.  While this list of public policy considerations is not exhaustive, the alleged shortcomings upon which the defendant relies to show invalidity being matters of non-compliance with the schedule are not of this character.  They are of a kind about which a client may have no concern, or which the client may be prepared to waive. 

22. As to the defendant’s submission based on Buckley v Tutty, I do not see the circumstances in that case as being analogous.  The court was not there concerned with contractual interests or financial disadvantage consequent upon the contracting parties not enforcing remedies.   The focus in that case was on restraint of trade giving rise to public policy considerations.  The standing was given to prevent an unreasonable restraint being enforced.  At p 380 the Court said:-

“The law treats unreasonable restraints as unenforceable because it is contrary to the public welfare that a man should reasonably be prevented from earning his living in whatever lawful way he chooses and that the public should reasonably be deprived of the services of the man prepared to engage in employment.  It would indeed be a strange weakness in the law if it afforded no protection to a person who was against his will subjected in fact to an unreasonable restraint of trade.”

The concept expressed by the Court there is that arrangements resulting in unreasonable restraints are unenforceable. 

23. The Court also observed that the terminology used by courts of high authority to describe the consequence of holding that a contract is an unreasonable restraint of trade has not always been uniform and precise. The Court noted that:-

“such contracts have often been described as legal…but they are not illegal in the sense that to enter into them is to commit an offence or actionable wrong…It was said by Lord Macnaghton in the Nordenfelt Case, and it has frequently been repeated that contracts in unreasonable restraint of trade are void.  But according to Lord Atkinson in Thompson v New South Wales Branch of the British Medical Association, this involves a misuse of language.  In Joseph Evans & Co Ltd v Heathcote, Bankes LJ said that “contracts of this kind are more properly spoken of as a contract which the law will not enforce.”^[11]

Of course, whether the enforceability of a contract or an arrangement is to be tested, that is clearly a matter for the person directly affected by the restraint.  There was no claim and therefore no discussion, in Buckley v Tutty as to whether a football club to which the footballer may have transferred would have a right to claim but it seems to me that the scope of public policy protection would be limited to the individual in such circumstances.

24. In my view the restraint imposed by s 48(5) of QLSA requiring that the terms of the agreement must “not be inconsistent with the notice in the schedule” has the purpose of ensuring that the client is placed in a position of making an informed decision as to whether to proceed with the retainer of that particular solicitor, in other words, to enter into the client agreement. This statutory obligation upon the solicitor is more a qualification of a personal contractual relationship than the furthering of a broad public purpose of the kind described in Buckley v Tutty.  But even if the restraints imposed by s 48 were characterised as having a broad public purpose, their breach is not of a kind which a court would, apart from the terms of the legislation, regard as giving rise to a nullity.  In Fitzgerald v F J Leonhardt Pty Ltd^[12] the High Court considered a statutory prohibition against the undertaking of drilling work without having obtained a permit.  Such non-compliance attracted a monetary penalty of $5,000 for the first offence.  In the joint judgment of McHugh and Gummow JJ the following passage appears (at p 227):-

“The question then becomes whether, as a matter of public policy, the court should decline to enforce the contract because of its association with the illegal activity of the owner in, if not causing, then at least suffering or permitting the construction and drilling of bores, within the meaning of s 56(1), without the grant to the owner of permits pursuant to s 57.  the refusal of the courts in such a case to regard the contract as enforceable stems not from the express or implied legislative prohibition but from the policy of the law, commonly called public policy, regard is to be had primarily to the scope and purpose of the statute to consider whether the legislative purpose will be fulfilled with regarding the contract as void and unenforceable.”

25. Even if a client’s right to challenge the agreement arose on public policy rather than contractual grounds, it is difficult to see how this would lead inevitably to the defendant in this instance having a standing. The Registrar’s task is to assess whether the costs are “reasonably incurred and of a reasonable amount”. If the costs agreement were so obviously non-complying such as to give rise to a presumption that the client was misinformed then I would expect the Registrar would, without determining validity, give the terms of the document little weight. The defendant of course would have the right to make submissions about the weight that should be given to the document when assessing the reasonableness of fees and costs. Only if the agreement had already been found to be void could the Registrar ignore it completely. I am satisfied that the defendant does not have standing to argue the validity of the agreement.

26. Although this finding makes unnecessary from my perspective any consideration of the validity of the agreement, I propose to deal with the arguments raised on the issue. However before doing so I also raise a matter not referred to in argument which seems to me to have relevance. This relates to the terms of s 48F(1) and in particular the meaning of the words “void”. Is the word to have its legal technical meaning of void ab initio or the more general meaning of “voidable” or “unenforceable”? The confusion which the use of this word attracts was demonstrated by Windeyer J in Brooks v Burns Philp Trustee Pty Ltd^[13] when dealing with the construction of a court sanctioned Deed of Settlement.  His Honour said (at p 459):-

“I have in this judgment used the words “invalid”, “unenforceable” or “ineffectual”, as, in similar cases, other judges have done.  Other words and phrases can be used.  For example, in the judgment under appeal the appellant’s covenant is called “illegal and void”.  A similar promise was called by Asquith L.J. “void and unenforceable”: Gaisberg v Storr (2).  The words used do not matter if the actual legal result they are used to express be not in doubt or debate.  But it has always seemed to me likely to lead to error, in matters such as this, to adopt first one of the family legal adjectives – “illegal”, “void”, “unenforceable”, “ineffectual”, “nugatory” – and then having given an act a label, to deduce from that is results in law.  That is to invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights.  That need not happen if words be used, as Hobbes said that by wise men they should be, only as counters to reckon with; but reckoning becomes difficult if the values of counters are not constant.  There may be no difficulty for adherents to Humpty Dumpty’s principle as expounded by him to Alice.  But his latitude and his command of his words as his servants are not generally allowed to lawyers.  They are called upon to interpret other men’s words.

The word “void” has never been an easy word…”

27. His Honour’s remarks were cited by Gaudron, Gummow and Hayne JJ in State of Victoria v Sutton^[14] when the High Court construed the terms of a court order which imposed civil consequences for property dealings forbidden by the Order.  The phrase used was that such dealings “shall be void at the option of the custodian”.  The joint judgment states (at p 306):-

“Windeyer J said of the term “void” that it “has never been an easy word” and pointed out that it did not necessarily mean that the void act had no legal effect at all.  In particular, where (as here) a disposition between two parties is described as “void” at the will of a third, the preferred construction is to read “void” as “voidable”.  The submission to the contrary which was at the forefront of the appellants’ submissions should not be accepted.  However, in the alternative, the appellants proffered the construction which we would accept.”

In the end result the majority view was that the phrase should be construed as voidable at the option of the custodian.

28. Cannons of construction hold that where words have acquired a legal meaning, it will be taken, prima facie, that the legislature has intended to use them with that meaning unless a contrary intention clearly appears from the context. Per O'Connor J in Attorney-General (NSW) v Brewery Employees’ Union of New South Wales.^[15] In relation to s 48F there is nothing in the actual text which would suggest any intention for the words to have a non-technical meaning.  But that approach is now qualified by s 14A of the Acts Interpretation Act 1954 which provides:-

“(1)  In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”

This provision applies to QLSA, its relevant terms having been an enacted after 1991.

29. As I have taken the view that the purpose of the legislation is the protection of the client when retaining a solicitor, the construction best fulfilling that purpose is one which would allow parts of the client agreement not tainted by non-compliance to be enforced. Those parts which contravene the Act by reason of non-compliance would not be enforceable by the solicitor against the client. In other words, a non-complying client agreement is voidable at the option of the client. If such a construction is correct then the document is not a nullity, it remains a document to which the assessing registrar can have regard and to give to it such weight as he or she determines.

30. A further consideration is the fact that a determination of invalidity depends upon whether subjective “estimates” or “explanations” are judged (subjectively by another person) to be consistent or inconsistent with the schedule. Such uncertainty should not attend the formation of contracts as important as the retainer of a solicitor by a client.

31. I turn now to consider the issues raised by the referral.

Validity of the client agreement

32. The defendant argues that there is inconsistency between the terms of the agreement and clauses 11 and 18 of the Schedule. The relevant terms are as follows:-

“11.  … the client agreement must state the basis on which fees and costs will be calculated (whether or not including a lump sum) and give either –

• An estimate of the total amount of fees and costs likely to be payable for the work; or
• If it is not reasonably practicable to estimate the total amount of estimates of the total amount of fees and costs likely to be payable for the work and an explanation of the significant variables that will affect the calculation of the amount.”

…

“18. If the work involves or is likely to involve litigation, this client agreement must include an explanation and estimate of the range of costs you may recover from another party if you are successful or you may be required to pay the other party if you are not successful.”

33. The agreement was entered into on 10 July 2000^[16].  This was a little over one month after the incident in which the plaintiff sustained his injuries and a considerable time before the action was commenced.  The notice of claim was filed on 15 March 2002, and a defence formally admitting liability was filed on 4 April 2002.  The defendants had previously admitted liability in response to the plaintiff’s initial claim on 29 March 2001 but for the purpose of this application liability should be taken to have been admitted on 4 April 2002.

34. It is appropriate therefore to consider the obligations of the solicitor on the date the agreement was signed, and in the circumstances then prevailing. The statutory provisions allow the terms of the agreement to be amended from time to time, no doubt to take account of changing circumstances. These require both the solicitor and the client to agree upon the changes in writing. An initial agreement may however be read subject to later communications, as occurred in Parker v Borg [supra].  But this application is not concerned with examination of the ongoing obligations of a solicitor to his/her client. It is concerned with whether the agreement complied with s 48, having regard to when and the circumstances in which it was made.

35. In purported compliance with clause 11 of the schedule, the agreement provided as follows:-

“6. Estimate of fees and outlays

i.The firm estimates that the total of fees and costs to complete the work detailed in clause 1 is between nil and $250,000.00 (approximately) depending on the following:-

• The complexity of the case and the difficulty and novelty of the issues involved;

• The number and importance of documents prepared or read in respect of the case;

• The time spent on the case;

• The research and consideration of questions of law and facts required;

• Whether the case can be determined quickly or alternatively, whether it may have to proceed to trial.

The Firm is not bound by the above estimate.”

As to the advice on reasonable costs referred to in clause 18 of the schedule, the agreement provided as follows:-

“8.  Recoverable costs

If the Client is successful in its litigation, the Client may recover some of the fees and costs incurred from another party.  It is estimated the possible range of fees and costs recoverable will be between nil and $250,000.00 (approximately).

If the Client is not successful in its litigation, the Client may be required to pay another party’s fees and costs.  The Firm estimates the amount the Client may have to pay another party would be between nil and $250,000.00 (approximately).”

36. Against that background the defendant argues that the agreement does not comply. It argues that giving in paragraph 6 an estimate “between nil and $250,000.00 (approximately)” is tantamount to a failure to give any estimate. Moreover, the defendant asserts that no meaningful explanation was given as required by the Act. It argues that the estimates in paragraph 8 of the agreement do not comply with clause 18 of the schedule for the same reasons, and further that no explanation whatsoever is given for the estimates.

37. On behalf of the plaintiff, Mr Griffin argued that at the time the agreement was made there were many uncertainties about the outcome of the proceedings. The agreement was made one month after the incident and before any assessment of the damages, and before liability had been fully investigated. The lower end of the fee range was correct because the agreement offered a no win-no fee basis of retainer. The upper end was predicated upon fees being charged with an uplift because of the speculative basis of the retainer. As further justification for this wide range Mr Griffin argued that the estimate could properly envision mistrials and appeals. The explanations given in paragraph 6 of the agreement do not specify these matters, but rely upon general statements such as complexity and novelty of the issues and the number of documents prepared or read. There is also a reference to speed of determination of the action which was intended to embrace the difference between a situation of early settlement and having to conduct a fully contested trial, but there was no explanation of the likely costs should there be a settlement at any of the various stages of the proceeding.

38. With respect to compliance with clause 18 of the schedule, paragraph 8 gives the same cost range estimate even though what was being contemplated was quite different. There was no explanation for that range. Mr Griffin argued that the explanation can be gleaned from looking at the whole of the agreement. A solicitor is not confined to expressing the explanation in a particular paragraph. That being so there is an explanation which relates to the uncertainties of the action at the time the agreement was made such as those relevant to paragraph 6 thereof. He further submits that it is not open to strike down such an agreement by reference to the quality of explanations or the accuracy of the range when those matters are very much the subjective determination by a solicitor. It occurs to me also that the stated explanation might depend upon the capacity of the client to understand and the extent to which the written explanation was supplemented by oral discussions. These observations have to be considered with the statutory requirement that the agreement “not be inconsistent with the notice”. Mr Griffin submits this is a lesser standard than having to be consistent with the notice.

39. I do not propose to deal with these matters in detail. Whatever may be the standard necessary to meet the statutory requirement, the solicitor in this instance has not, in my view, made any genuine attempt to inform the client as required by the schedule. An estimate for fees and cost in a range between nil and $250,000 is not an estimate which provides any guidance for a client in the position of this plaintiff. It was not necessary to provide a single estimate to cover the extreme possibilities for the conduct of the claim. If a genuine total estimate cannot be given, the schedule contemplates a range of estimates for the work and an explanation of the variables. In a personal injury claim where the various steps in a proceeding are well defined, providing a stage by stage estimate of fees and costs is not a difficult undertaking. The client would thus be informed whenever there is any major change in the extent of his/her liability. Any major change affecting exposure to cost (such as an admission of liability) could be contemplated in that framework or be the subject of further notification.

40. Similarly, in respect of s 18 of the schedule the recovery of costs from another party could be expressed in a stage by stage fashion or expressed as a percentage of the client’s own costs. Fixing the likely level of costs payable to another party would be somewhat more uncertain. But what is required in both instances is a genuine estimate such as to inform the client of his potential liability to pay costs. This obligation is not fulfilled by offering a broad range which is so lacking in its base and its explanation as to provide no worthwhile information.

41. The accuracy of estimates should not be judged too finely. I agree with the remarks of Fryberg J in Jezer Constructions Group Pty Ltd v Conomos^[17]:-

“The provision of a wrong estimate, and it can only be an estimate, does not produce the result that the estimate ceases to be an estimate.  For the applicants it was submitted that this estimate was so vague and so plainly and widely wrong that it did not merit the description of the estimate, but I do not agree.  It may well be that the estimate, in fact in overall terms at least, was not a bad one.  The material does not really demonstrate that one way or the other.  In any event, it seems to me that mere inaccuracy, even substantial inaccuracy, in the estimate does not mean that there is no estimate for the purpose of this section.”

42. But the task of determining whether the client agreement was “not inconsistent” with the schedule gives rise to a question of degree. The line between being consistent and inconsistent may in some instances not be easy to determine, but in this instance I am satisfied that the requirement to inform the client has not been met.

Quantum of counsel’s fees

43. On the issue of counsel’s fees the court is not asked to determine the actual quantum of the fees. That is appropriately a matter for the assessing registrar. What is sought is a direction as to whether the Registrar should have regard to the 50% uplift in fees which is premised upon the action conducted on a speculative basis.

44. This gives rise to a question of whether the brief was, in fact, speculative. I note from a recent report of the President of the Queensland Bar Association that this is one of the commonest causes for fee disputes. It is unfortunate that this should be so.

45. As I understand it there are two elements to the claim in this case. The first element is that counsel is entitled to some uplift because he would not claim a fee if the plaintiff’s case was dismissed or the plaintiff otherwise did not recover damages and costs. The second element is an entitlement to claim some uplift because payment of fees would be delayed until the case was completed. In this instance the delay was less than three years.

46. Prima facie the resolution of this question so far as the first element is concerned, is that as from the formal admission of liability one expects that payment of counsel fees were no longer speculative. From that point unless there are some circumstances not known to me, recovery by counsel of his fees would be assured. Risks might arise because of the non-acceptance by the plaintiff of offers to settle but these are the risks of the plaintiff, and ought not to be risks of counsel.

47. There may however be terms of counsel’s retainer which alter my assumed basis for these remarks but, absent any such terms, I would direct the registrar to assess counsel’s fees on a non-speculative basis from the date of the filing of the defence.

48. Some uplift, at the discretion of the Registrar, is appropriate to take account of the delay in payment of counsel’s fees.

Hourly charge out rate by solicitor

49. Having come to the view that the registrar is entitled to have regard to the agreement the assessment of the proper hourly charge out rate for the solicitors should be left entirely to his discretion which should be exercised having regard to my remarks generally in these reasons for judgment.

Orders

1. I declare that the second defendant does not have standing to challenge the validity of the agreement made between the plaintiff and his solicitors pursuant to s 48 of the Queensland Law Society Act 1952.

2. I declare that the Registrar is entitled to have regard to the agreement in accordance with r 704(3) of the Uniform civil Procedure Rules.

3. I direct that in assessing the fees of counsel that –

1. An uplift in fees on the basis of the claim being speculative is appropriate until the filing of the defence but not thereafter.

2. An uplift in fees on the basis of delay in their payment is appropriate for the period that the fees remained unpaid.

4. Unless parties within 14 days make submissions in writing seeking a different order, I order that the costs of and incidental to this referral by the Registrar be assessed on the standard basis and be dealt with as part of the costs of taxation.