Barrister fees fight goes to High Court

Michael PellyLegal editor

Jan 13, 2019 – 11.45pm

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Judges are not shy of reminding litigants that the cost of bringing a claim will be far outstripped by what is actually at stake. Now, the High Court has taken on a case that shapes as prime example of such absurdity.

For 10 years, Sydney barrister Janet Pentelow has been battling a firm of solicitors, Bell Lawyers, that briefed her in a family law case in 2008 but then refused to pay a bill of $25,988.55.

She took them to court and won, with the assistance of a solicitor and senior counsel. But when she tried to claim the cost of the work she did on the case – almost $45,000 – Bell objected.

High importance ... the issue of whether barristers can claim costs when acting for themselves in litigation will now go before the nation's top court. Rob Homer

Ms Pentelow lost twice before she got to the NSW Court of Appeal. By a 2-1 majority in August 2018, the court upheld her claim saying the "Chorley rule" that allowed solicitors to recover costs when acting as a self-represented litigant also applied to barristers.

Bell applied to the High Court for special leave to appeal, and just before Christmas Chief Justice Susan Kiefel and Justice Michelle Gordon agreed it should go before the full court.

With leading Sydney barristers Bret Walker SC (for Bell) and Guy Reynolds SC involved – along with their junior counsel and instructing solicitors – the bill for the case could be a minimum $100,000 by the time it is decided.

During the hearing, Ms Pentelow made a plea – to no avail – around the expense of going to Australia's top court.

"We submit that that on its own would make this an inappropriate case for special leave," Mr Reynolds argued.

'Predictable criticism'

Mr Walker had already conceded there would be "predictable criticism" that the claim "concerns only a matter of costs which are, according to some people's lives, at least relatively modest".

"One of course sympathises with the tortuous path that litigants in this position take on both sides," the silk said. "However, that is what the system provides when somebody seeks to have costs of this kind ordered in their favour."

He added that "one of the reasons why the Chorley exception is of importance is that it represents a considerable entrenchment for a considerable class".

"She was not invoiced, to use the language, for her work as a barrister."

Mr Walker argued that "costs shifting is a critical part of the administration of justice".

Bret Walker SC won special leave for his client Bell Lawyers ..."costs shifting is a critical part of the administration of justice". Penny Bradfield

"Yes, it can be said it is only costs. Yes, it could be said in this case, relatively modest. But we are talking about a phenomenon which is costs and the costs of litigation loom large in the Court's supervision as a matter of its doctrine of how and why they can be ordered to be paid."

Justice Gordon noted, "there are three questions. Is the Chorley exception still good law? Second, does it extend to barristers and, third, does it extend to barristers who have retained a solicitor and counsel to appear for them?"

The case will likely be heard in the first half on 2019, with both sides agreeing it would only take one day.

Michael Pelly is the legal editor, based in our Sydney newsroom. He has been a senior adviser to federal and state attorneys-general and written two books, one a biography of former High Court Chief Justice Murray Gleeson. Email Michael at michael.pelly@afr.com