I am regularly told by Plaintiff and Defendant solicitor that their opponents, and often their own staff, are inexperienced or out of touch with what is recoverable on a Standard basis.
This article will focus on:
- What are Standard costs? Misconceptions and lost opportunities.
- Multiple parties – the impact of Thomson v State of QLD.
- Practical effect of recent Practice Directions – care and consideration and a plaintiff’s legal capacity.
What are Standard costs?
Standard costs under Uniform Civil Procedure Rules (Qld) (UCPR) Rule 703(2) are those costs that are “necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.”
- Multiple Staff working on the file, doing the same thing, like attending with the client or in court: This usually isn’t allowable unless the matter is sufficiently difficult and complex. The more appropriate way may be to claim for more Care and Consideration.
- Updates and advice v requesting instructions: It is allowable to advise your client as to the ‘next steps’ or ‘future conduct’ of the matter, but I would not allow it more than once or twice depending on the complexity, difficulty, and novelty of the matter. The better way is to seek / confirm instructions / information from the client (see Picamore Pty Ltd v Challen  QDC 67 - attendances need to be readily identifiable for their content.
- Ordinary attendance v skill or legal knowledge: Just because a solicitor makes a call or has an attendance with the client or any other party, it does not mean that it should be claimed at the “skill or legal knowledge” rate. It will need to be file noted that the solicitor provide advice, requested instructions, or discussed the application of the law. Things like making appointments or obtaining counsel’s availability are not allowed at a solicitor’s rate.
- (Over) reliance on Counsel and Counsel’s fees: It is not appropriate to claim for counsel to settle letters, simple court documents, or meet with the party multiple times. Where there are senior and junior counsel being claimed, the test is whether they are reasonably necessary for the adequate presentation of the case (as per Stubberfield v Kilner & Black (a firm)  QSC 42).
- GST on disbursements: Essentially, where GST has been passed on and claimed as an input tax credit, the amount recovered under an assessment on the standard basis from the other party should be the amount of the outlays net of GST – see Hennessey Glass and Aluminium Pty Ltd -v- Watpac Australia Pty Ltd  QDC 57
In Thomson v State of Queensland & Anor (No 2)  QSC 115, the plaintiff succeeded in obtaining a judgment against the first defendant (PIPA party) and a judgment against the second defendant (WorkCover). The contentious part was whether the costs order made in favour of the plaintiff against the PIPA Party include the costs of pursuing WorkCover.
Liability was only admitted by both defendants shortly before written submissions on both liability and quantum were due. The defendants resolved issues of indemnity and contribution, making it unnecessary and inappropriate for the Court to decide contribution and indemnity between them.
It was ultimately held that if the plaintiff had failed entirely against WorkCover, and succeeded only against the PIPA party, there would have been a basis for him to seek a costs order against the PIPA party with respect to his unsuccessful pursuit of the WCQ. Therefore, because the Plaintiff succeeded against WorkCover the principle must be the same, if not stronger. There was no reason to doubt the reasonableness of the course taken by him in pursuing both defendants, neither of which admitted liability.
Practice Directions (PD) and their practical effect
PD 22 of 2018 - Care and Consideration
There is now a wider range of care and consideration amounts applicable depending on which jurisdiction the matter is in, and the level of complexity involved. The percentage allowed should, in the absence of exceptional circumstances, fall within the ranges stated – between 10% and 35%.
You will note the absence of any guidance for the Magistrates Court. Characterisation of a matter as straightforward or complex is to be done on a case by case basis, but the intention is that, for each court, about half of the work of the court is to fall into each category
PD 15 of 2018 – Persons under a Legal Disability
When attempting to sanction a matter where the Plaintiff has a legal disability, the solicitor acting for the plaintiff must include in a supporting affidavit an estimate of:
- Standard costs recovered or recoverable in the proceeding or in respect of the claim;
- Indemnity costs recoverable in the proceeding or in respect of the claim either against the Defendant or the Plaintiff; and
- The amount the plaintiff will be paying out of the compromise sum to satisfy the difference between standard costs and indemnity costs.
This PD closely followed the decision of Nicotra v State of Queensland  QSC 303 which, among other issues, underlines the Court’s growing interest in the differential between Standard Costs and Indemnity costs, and what steps are necessary to justify the difference.
Director | Principal Costs Lawyer
Court Appointed Costs Assessor (QLD)