Fee, fi, fo, fight

Sydney silk in fees stoush with Brisbane law shop ... Court of Appeal refuses to strike out solicitors' defence and cross-claim ... Allegation of overcharging ... Ballooning estimates 

Chris Branson (left): upward revisions

CRUSTY Sydney warhorse Christopher Branson QC has had another setback in a row with a Brisbane law shop over his fees. 

The Court of Appeal, led by Smokin' Joe Campbell, has upheld a District Court decision of Judge Anne Quick dismissing Branson's move to strike out the law firm's defence and cross-claim. 

The firm, Tucker & Cowen, said that the barrister's fees were excessive. 

The story unfolded like this … 

Branson saddled-up in the Federal Court in a case called Alpine Beef v Trycill. He was successful, because the claim against Tucker & Cowen's clients was dismissed and indemnity costs were ordered. 

Beforehand Branson disclosed to the solicitors that he estimated his fees would be $900 an hour for reading, preparation, conferences, consultations, drafting and advising generally and that his bill for the trial would be $7,000 a day (all ex-GST). 

Notwithstanding the difficulty in estimating the time and work involved he thought his fees for the job would be approximately $65,000. 

The case was listed for hearing from December 14-18, 2009. 

He added that interest would be charged on payments more than 30 days late. 

As things trundled along Branson made a number of upward revisions of the estimate of his fees. 

By October 12, 2009 the estimate had gone up to $85,000. On December 4, 2009 it was $147,000 and a fortnight later it went to $179,000. 

In the end his total fees came to $252,147.50, which ex-GST was $229,225. 

He sent in five bills as the matter progressed. 

The first three and the fifth were paid promptly. 

The fourth memorandum of fees, dated December 18, 2009 for $109,532.50, was questioned. 

This bill related to work from December 7 to December 18, and covered the period of the Federal Court hearing. 

The law shop sought to have the amount assessed under the Legal Profession Act. 

The manager of costs assessment at the Supreme Court didn't examine the bill because the 60 day period allowed under the Act had lapsed. 

Branson's proposition was that since there had been no assessment of the costs the bill must simply be paid, without dispute. 

In June 2010 Branson filed a statement of claim in the Dizzo seeking to recover the money for his fourth bill. 

The following month Tucker & Cowen paid the disputed fees, saying they did so under protest and without prejudice and they would seek to recover any excessive amount that had been charged and paid. 

The respondents then filed a defence and cross claim. 

Branson's claim was limited to recovery of interest and costs and he wanted the defence and cross claim struck out, an application that was dismissed by Judge Quick. 

According to the CA reasons the respondents' complaints about the disputed bill were: 

• On any day there was a hearing Branson charged both the quoted daily fee and separate fees for conferences; 
• The full daily fee was charged for the fifth day of the trial, even though the actual hearing occupied only half-an-hour; 
• From the commencement of the retainer until the day before the commencement of the trial, a total of 158 hours was charged for preparation. The time charged seemed excessive because the affidavit evidence of both sides at the trial occupied no more than two-and-a-half arch-lever folders. 
• Over four days in December 2009 a total of 41 hours was charged for preparation of final submissions. Those submissions were produced by a collaborative effort of Branson, his junior and his instructing solicitor. The respondents said the time charged seemed excessive because the legal issues in the case "were not by any means novel". 
• The fees charged significantly exceeded all the estimates; 
• There was an implied term in the contract that Branson's fees would be fair and reasonable and that term was breached. 

There was much argument about Branson's contention was that Div 11 of the LPA provided "an exclusive scheme" for the assessment of bills of costs. 

He wanted an earlier CA decision in Attard v James Legal overturned.  

That was the case involving a dispute over solicitors' fees where the court referred the costs "to a referee experienced in the assessment of legal costs and disbursements". 

Anyway, Smokin' Joe and the others didn't think it was a good idea to grant leave to allow argument on whether aspects of Attard were wrongly decided. 

Reg Barrett J said that it was simply not the case that the LPA provided the only legally available means for the assessment of costs. 

Costs agreements can be enforced in the same way as any other contract. 

However, if advantage is taken of the LPA assessment procedure, the assessor's certificate may be filed in a court registry and this would translate into a deemed judgment debt. 

Once a judgment debt arises then there is no ground to recover or offset in contract. 

However, what is clear is that the LPA does not make untenable the defence and cross-claim filed by the solicitors. 

On it goes. 

See: Branson v Tucker 

See: Chris Branson's website