Williamson & Williamson v Pay

In this matter, the Court was asked to recognise what the applicant termed a “barrister’s lien” – an equitable lien over his successful clients’ costs order in the substantive proceeding in order to secure the payment of his fees – as an extension of the remedy of a “solicitor’s lien” well-known to the law. Although not finally determining the question, Williams J observed that there was some authority for a barrister’s lien where a barrister was directly briefed or the instructing solicitor was not directly liable for counsel’s fees.

Williams J

27 October 2020

A barrister acted for two applicants in a substantive application relating to a succession matter. [1]. It was ordered that the applicants’ costs be paid out of the estate on an indemnity basis. [9]. A short form costs assessment assessed the applicants’ costs and outlays as $230,787.74. A dispute arose between the barrister and his instructing solicitor about the payment of the barrister’s fees. [10]. The barrister obtained a default judgment against his instructing solicitor in the Magistrates Court in the sum of $120,474.32, including interests and costs. [11]–[12].

The judgment remaining unpaid, the barrister sought to assert a “barrister’s lien” (a type of equitable lien, to be recognised as an extension of the solicitor’s lien well-known to the law) against the costs order obtained by the applicants, in the amount of $206,606.94. This amount reflected the default judgment amount, further interest in the sum of $3,728.62, together with the costs of enforcing the lien in the present application in the sum of $82,404.00. [14]–[15].

In resolving the application, Williams J noted that there were a number of Australian authorities that recognised that “a barrister may have a lien over the ‘fruits of the action’”. [47]. General principle did not exclude recognition of an equitable lien of this type. However, as with any equitable lien, “whether one will be recognised … depends on [the] circumstances of each case”. [56].

Having reviewed the authorities ([46]–[80]), Williams J observed that:

“to the extent that there is some support in the authorities for a barrister’s lien, it appears it may be limited to where counsel receives a direct brief from a client or where a solicitor was not directly liable for counsel’s fees.” [81].

It was unnecessary to finally determine the question of whether – and in what circumstances – the law would recognise a “barrister’s lien”. It was clear to her Honour that one should not be recognised in this case, for several reasons:

1)the instructing solicitor was liable for the barrister’s costs, as the default judgment reflected;

2)there was no evidence of “a probability of the client depriving [the barrister] of his costs”, which was a fundamental feature of the recognition of an equitable lien in favour of a lawyer;

3)recognition of an equitable lien was discretionary and “only occurred to the extent necessary” – it was not necessary here as the administrator of the estate had already, in separate proceedings, obtained orders to facilitate payment of the barrister’s fees from the estate;

4)it was not clear that the barrister had standing to seek that part of a costs order belonging to his clients be paid directly to him; and

5)even if an equitable lien were to be recognised here, the costs of this application to “enforce” the lien claimed by the barrister ($82,404.00) were unreasonable and would not be recoverable under the exercise of any lien. [81].

Justice Williams held that even if the barrister had demonstrated an entitlement to a lien he had not established that the Court should exercise its discretion to grant relief in the particular circumstances. [82].

In the result, the application was dismissed. [83].

S Walpole