WA Lawyer Fees and Terms of Engagement - Costs Agreement?

[Safety Rod]

Hello all,
I have a general question that has been bugging me about something I read in the terms of engagement of a lawyer here in Western Australia.

This relates to a condition in the terms relating to disputes regarding fees etc and that any action needs to be taken in the high court of Australia if the client wanted to recover costs or whatever.

Is it just me, or are the lawyers trying to gain some advantage over their clients by including such a clause, whereby it would be very impracticable, and highly unlikely for anyone to proceed with such an action? In a broad sense, the lawyer fees are protected by a clause that is included to protect any fees that they charge, regardless of amount or perceived value.

In this case, the fees were only about $400, and there was no dispute about the costs. I would think that a fair and reasonable thing to do in the event of any dispute regarding fees, would be done in a court or jurisdiction relating to the value of the claim. In this case, the Small Claims Tribunal.

Why would the lawyers include this clause in their terms?

 

[Sophea]

Dear Safety Rod,

I have no idea why a law firm would include a clause to the effect that you have described in your question above, as I very much doubt any such a dispute would fall within the jurisdiction of the High Court.

Generally, the High Court is only able to hear appeals from state supreme courts, any federal court or court exercising federal jurisdiction (its appellate jurisdiction) for which one would need to obtain special leave of the court, or from its original jurisdiction which only includes matters:

• (i) arising under any treaty
• (ii) affecting consuls or other representatives of other countries
• (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party
• (iv) between States, or between residents of different States, or between a State and a resident of another State

• (v) in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

 

[John R]

Hi @Safety Rod
As a general rule, solicitors (lawyers) across Australia are required to provide you with a costs agreement.
Costs agreements exist to protect both the lawyer and client:

• the client has (hopefully, clear) avenues about what costs that they are required to pay;
• the client has (again, hopefully clear) options in relation to making a complaint and/or disputing a lawyer's bill; and
• the lawyer has the ability to recover their costs in the event of non-payment, etc.

In relation to Western Australia, the Law Society of WA makes available two (2) client fact sheets in relation to costs agreements that summarise the requirements and options to complaint or dispute a lawyer's bill. That said, I was unable to find any reference to the High Court of Australia.

Can you please confirm the specific clause in the costs agreement that mentioned the High Court?

 

[Tim W]

Is it by any chance in the "Choice of Law" clause?

 

[Safety Rod]

Thanks for the response. I think it might have been the Supreme Court, not the High Court. It did have something to do with either choice of law, or costs. I hope to find the agreement and provide the exact wording.

 

[Safety Rod]

The reason I raised this point, is that although I am not a lawyer, I have been dealing with commercial and other contracts between individuals for many years, and have some idea of how a contract is drawn up, conditions allowable etc. Having been on the purchasers "side" mostly, it was surprising to me how many contracts (including the one from the lawyer) merely seem to protect the interests of the party providing the contract (for example a supplier of a service), whereby no/little protection is provided to the purchaser in a civil sense.

I have raised issues like this with supplier legal advisers, with little advancement of a fair and reasonable contract. I know this is seen as just being "negotiation", but I think it is an outcome of legal words used specifically to gain a financial advantage.

This is not a point of law, it is an overall view of how much of this stuff is undertaken.

Of course, I took the liberty of changing the clauses and wording of contracts to better reflect a fair and equitable outcome for both parties.

 

[Tim W]

Is it just me, or are the lawyers trying to gain some advantage over their clients by including such a clause, whereby it would be very impracticable, and highly unlikely for anyone to proceed with such an action?

It's just you.
That said, lawyers are in business, and expect to get paid for their work, too.
It is neither "impractical" nor "unlikely" for a dispute to arise over fees.
It happens every day. And the lawyers don't always come out in front.

In a broad sense, the lawyers fees are protected by a clause that is included to protect any fees that they charge, regardless of amount or perceived value.

See the stuff above about Costs Agreements and Costs Disclosures.
Also, have a read of this:
http://www.lavanlegal.com.au/images/uploads/Your Right To Challenge Legal Costs (Form 3).pdf
Also, I don't understand what you mean by "perceived value".
If you have selected a lawyer, and signed a costs agreement, then there is nothing "perceived" about it.

 

[Safety Rod]

Thanks Tim, without getting into an argument with this, although it is a central point, your statement:

If you have selected a lawyer, and signed a costs agreement, then there is nothing "perceived" about it.

And if the lawyer does not provide the service agreed as part of verbal instructions, thereby allowing the possibility of the lawyer providing a defence, within the contract / terms of engagement that it was not in writing?

 

[Tim W]

Thanks for the response. I think it might have been the Supreme Court, not the High Court. It did have something to do with either choice of law, or costs. I hope to find the agreement and provide the exact wording.

It is very common to include a "Choice Of Law" clause in a contract.
This is especially so if there are two or more jurisdictions involved
(eg two countries, two currencies, or even two sets of legal machina such as weights and measures),
where the dispute resolution processes, and the law itself, can differ.
When this is the case, it is helpful for both parties to know, in the event of dispute,
which body of law will be used to resolve it.

The language you are talking about sounds like the kind of thing you can see in a "Choice of Law" clause.

 

[Safety Rod]

Hey Tim, thanks for the clarification. On the point regarding the "Choice of Law", would that not be the choice of the applicant, if they so chose to apply for a determination in say, the Small Claims Tribunal, for a small claim that would usually be heard there? Why would it make any difference that the dispute is between a lawyer (practice) and a client, or say a supplier in the same contractual sense to the same person as a client? Does the contract/terms overrule the potential choice of action taken by the client? Does it depend on the wording of the agreement, or can a baseline position be gained by what is deemed acceptable or fair and reasonable by a Tribunal or Court?

I know there are a number of questions here, but am interested in what legal professionals might think about this.