For a very long time in Commonwealth legal systems, the legal profession has been regulated for the benefit of clients of lawyers and the public at large. Among other things, there has been a recognised public interest in protecting those liable to pay legal fees from overcharging by lawyers. One of those protections is and has been the legal requirement for a bill to be provided so that the client can seek advice on the fees and charges.
As a result, one of the many modern obligations that lawyers in English legal systems have to comply with in the course of legal practice is to provide clients and any other persons liable for their fees with proper bills before such persons can be liable for or sued for such fees.
This article will outline the development of the law in respect of the requirements for solicitors’ bills in England and other nations of the Commonwealth.
For clarity, it is important to define key concepts and identify changes in the terminology that have developed between England and Australia:
“bill of costs” or “bill” means a bill by a solicitor/law practice provided to a client or other person liable to pay legal costs.
“contentious business” in England, means work performed by a lawyer in a matter where there is a contest between the parties involved, typically litigation.
“itemised bill of costs” or “itemised bill” in Australian state jurisdictions, means a bill provided by a solicitor/law practice setting out the charges claimed for in detail, with separate items for each piece or continuous period of work performed, normally containing the date, the time spent and the name of the person for each item.
“gross sum bill” or “lump sum bill” means a bill by a solicitor/law practice describing the services for the charges claimed but which is not in the form of an itemised bill.
“non-contentious business” in England, means work performed by a lawyer which is not contentious business, eg conveyancing.
“taxation” or “costs assessment” between lawyer and client in Australian state jurisdictions, means/refers to a process by which someone independent to the lawyer and the client (called a taxing officer or costs assessor) is appointed by the Court to review the lawyer’s bill, consider the client’s objections to it (if any) and determine what is a proper charge for the amounts claimed by the lawyer.
“taxing officer” or “costs assessor” in Australian state jurisdictions, means/refers to the person who conducts the taxation or costs assessment. Traditionally, this person was a registrar or other officer of the Court, however under the Legal Profession Act 2007, costs assessors in Queensland are eligible lawyers who have been appointed by the Supreme Court.
When narrating/summarising the various cases, this article will use the same terminology that appears in each case. However, for the sake of clarity, the parties in the cases will be generally referred to as the solicitor/law firm and the client respectively where applicable.
Development of the law in England
The law of lawyers bills in Commonwealth jurisdictions originated and developed from England. The earliest legislation with respect to the bills of lawyers was passed in England, and from there emerged the early case law which interpreted the legislation. In order to understand the purpose of the early legislation as interpreted by the English Courts, it is important to understand the earlier existence and nature of taxation of lawyers’ bills.
The Attorneys and Solicitors Act 1729 introduced a statutory right for clients to have the costs between solicitor and client assessed (taxed) by a court officer. That is, the court officer at the election of the client could review the solicitor’s charges contained in the bill and determine whether the client had been charged properly, and what the proper charge was.
Importantly, section 23 of the Attorneys and Solicitors Act 1729 provided that if as a result of taxation the bill was reduced by more than one sixth, the solicitor would have to pay for the taxation, whereas if the bill was reduced by a lesser extent, the burden of the costs of the taxation was a discretion of the Court. In such event, the client would be at real risk of bearing the costs of taxation and ending up worse off than if they had not sought taxation. It was therefore highly desirable for a client to have knowledge of their prospects of reducing the bill by more than one sixth on taxation.
Bill before suing
The Solicitors Act 1843 in England was the first statute which required solicitors to deliver bills to clients before they could sue for non payment of their costs. Section 37 of the Solicitors Act provided that a solicitor could not commence any action or suit for unpaid fees until one month after the delivery of a “Bill of such Fees, Charges, and Disbursements” to the client.
It is from this statutory requirement that the early case law developed on the requirements for solicitors’ bills. These early cases held that the bill needed to contain sufficient information about the charges for the client to be able to obtain advice from another lawyer about taxation of the bill, and in particular their prospects of reducing the bill by more than one sixth. The Courts held that this was the intention of parliament, because if the client reduced the bill by less than one sixth of the amount charged, it would be a costly exercise if they were also ordered to pay the costs of the taxation. A similar situation exists to this day in Queensland, where if the client reduces the bill by more than 15% on an assessment, the ordinary rule is that the law practice will have to pay the costs of the assessment, and otherwise the client will have to pay for it, unless the costs assessor otherwise orders.
Statutes ever since the Solicitors Act of 1843 have imposed requirements for the delivery of lawyers’ bills, which must be met before lawyers can sue for recovery for their fees. Such provisions primarily exist for the protection of consumers of the services of the legal profession.
As the rest of this article will show, the requirement that solicitors issue bills one month before having a right to recover their costs by suing for them exists to this day in England and Commonwealth nations such as Australia. Furthermore, the law continues to recognise that clients have the right to obtain sufficient information (which ordinarily is contained in the bill) to obtain advice about applying for a costs assessment and their prospects of having the solicitor bear the costs of the assessment.
The English cases are where the law on costs and lawyers’ bills in other Commonwealth countries originates from. The principles developed in those early cases are the foundation of the modern law. It is from these cases that a client’s right to sufficient information contained in the bill to obtain advice about taxation was established. A failure to provide sufficient information would mean that there had not been bona fide compliance with the statute requiring the delivery of a bill of charges, and the solicitor would be consequently nonsuited because he had no right to sue the client in the first place.
The earliest cases dealt with bills that failed to state the court(s) in which the solicitor performed the work they had changed for. This was important because such information would reveal which Court the client could seek taxation, and some Courts had different charges to others. Initially, the English courts held that solicitors’ bills must identify the court(s) in which the business was done in, otherwise they were inadequate for that reason alone, however this requirement was relaxed over time. One reason for this change was that it was increasingly found that such information should normally already be within the client’s knowledge. Another cause was a subtle change to the statute regulating lawyers’ costs. Initially, a bill had to be referred to taxation by the Court “in which the business contained in such bill, or the greatest part thereof in amount or value, shall have been transacted”. The amended enactment provided that a number of English Courts had jurisdiction to order taxation of a bill “in case any part of such business shall have been transacted in any other Court” than a Court of Equity. As a result, it no longer became necessary for a client to know in which court or courts the work was done, so long as they knew that it was not in a Court of Equity.
The following are the most significant cases in chronological order.
The solicitor sued the client for his outstanding fees. The bill contained charges for business done in a Chancery suit and charges for work done in another suit for which the bill failed to state the Court in which the work for that suit was done. It was however apparent that the suit was in one of the Superior Courts of law, as the charges were the same in each of the Superior Courts.
The client sought a nonsuit, on the ground that the bill that had been sued on did not comply with section 37 of the Solicitors Act 1843, which required that a bill of fees, charges and disbursements be delivered at least one month prior to commencing the suit. Farrer for the solicitor argued that although in Engleheart v Moore it was held that section 37 was intended to provide the client with a full opportunity of determining whether the work was performed and the charges were reasonable, and that generally the bill should state in which court the business was transacted, this was because in that case the charges in the Courts were different. Farrer submitted that requirement to state the Court did not apply here because the common law charges were the same in all of the courts.
Parke B held that the bill had to state the Court not only for the client to judge the charges, but also so that he would know where to apply for taxation of the bill.
Pollock CB held that the rule that a solicitor’s bill should state in which courts the business was transacted was absolute, because otherwise an attorney looking at the bill would not have been able to advise the client on the propriety of having it taxed. Parke B, Rolfe B and Platt B concurred.
The Exchequer of Pleas therefore entered a nonsuit against the solicitor.
Waller v Lacy 133 E.R. 245, 1 Scott’s N. R. 186
The solicitor sued for a number of bills for charges and disbursements from 1828 and 1836, and the client pleaded various defences of non assumpsit, a statute of limitations, payment, set-off, no signed bill being delivered and also had a cross-demand for articles. The bill contained seven charges only stated in the aggregate for each matter. For four of those matters separate bills had previously been rendered by the solicitor but had not been duly signed by him. An arbitrator referred the matter for various questions for determination by the Court of Common Pleas.
Tindall CJ (with Coltman Bosanquet & Erkskine JJ agreeing), held that a sufficient bill had been delivered for some portions of the plaintiff’s demand. With respect to the seven charges only stated in the aggregate, two of them were found to be insufficient/ have had no sufficient bill delivered as required by the statute. However, for the remainder of the aggregate items no such objection existed because the work for them did not apply to matters in law and equity, and were therefore not subject to the requirement of the statute. The solicitor was criticised for providing ‘disjoined particulars’, which disclosed no grounds for the judgment of the taxing officer. It was also held that the solicitor’s note at the bottom of one of his bills was an admission of the defendant’s alleged set-off, which was not barred by statute.
Appeal by the client against judgment for the plaintiff, a solicitor who had sued for his outstanding fees. The bill was for acting for the client/defendant in 12 different actions, where for 11 matters the bill disclosed the court that the actions were conducted in, and one whose items were for a smaller amount, did not. The client alleged that this rendered the entire bill invalid and sought to rely on Ivimey v Marks (supra).
The Court held that Ivimey v Marks is distinguishable because in that case the client had insufficient information about in which jurisdiction to seek taxation, however in this case the client had that information because in ordinary course taxation is sought in the Court where the principal part of the business was done. Rule discharged.
Pattison J opined that:
“In requiring the delivery of an attorney’s bill, the Legislature intended that the client should have sufficient materials for obtaining advice as to taxation; and we think that we fulfil that intention by holding the present bill sufficient within that principle; whereas, if we required in respect of every item a precise exactness of form, we should go beyond the words and meaning of the statute, and should give facilities to dishonest clients to defeat just claims upon a pretence of a defect of form in respect of which they had no real interest.”
Importance of this case: This case confirms that exactness of form is not required. What the Court was interested in was whether there is sufficient information for the client to know what he was being charged for, and in which Court the client should apply to for the costs to be assessed.
Cozens v. Graham (1852), 12 C. B. 398 (16, Jurist 952)
The solicitor issued a bill for work done which contained the name of the cause and described the work done but not the Court. When the solicitor sued for outstanding fees, the client (who was also an attorney) inter alia pleaded that no signed bill had been delivered. The solicitor to prove his case gave in evidence correspondence he had sent to the client which enclosed some court documents and therefore showed the business was done in one of the common law courts. The undersheriff nonsuited the solicitor, who then obtained a rule nisi.
Jervis CJ held that although the rule requiring that solicitors disclose the name of the court should be applied strictly, the correspondence showed that the solicitor had done so. Maule J agreed, noting this was not a case where the client could have been confused about the Court, because the correspondence to him made it clear. Cresswell and Talfourd J concurred. Verdict was granted to the solicitor.
Appeal by client against a judgment for the plaintiff, a solicitor who sued for outstanding fees. The client alleged that the first and last parts of the bill were insufficient as they did not show in which Court the business was transacted, making the whole bill invalid under statute.
The Court discussed the authorities that stated it was necessary for a bill to state in which Court the business was conducted because the Court in which business was transacted had jurisdiction for the taxation of charges for that business, fees were different in different courts, and also to allow the client the opportunity to ascertain whether the business was done and whether the charges were reasonable. However, the solicitor relied on Keene v Ward, a more recent case where it was held it was not necessary for a bill to state in which Court business was transacted as the scale of costs was now the same in all superior courts.
Campbell CJ, who delivered the judgment of the Court, noted that the earlier cases had proceeded according to the assumption (contrary to fact) that clients know nothing about the litigation that has been engaged on their behalf. Campbell CJ held that the judgment of Cozens v Graham (16 Jurist, 952) gives effect to the principle that a client cannot object to a bill on the basis that a lack of information contained in it if it appears that he is already in possession of such information. Further, while the Act gives clients a right to reasonably request more information, a bill intended and providing all requisite information should be considered compliant unless a client shows that information they really wanted had been withheld. The client’s complaint was dismissed and verdict entered for the solicitor.
Importance of this case: A former client cannot claim not to know things and then complain about the adequacy of the bill if it appears they already have the information required to obtain advice about taxation. The client bears the onus of proof of showing they do not have sufficient information.
Pigot v. Cadman. 1 H. N., Exch. Kep., 837
The solicitor issued a bill for three separate transactions which specified extra costs to those which were taxed but not the items that were taxed. Two further bills were issued after the solicitor sued, because the client had requited the solicitor to state whether he had any further claims against him. At trial, the jury found in favour for the client, save for the first division of the first bill. The client then appealed, contending he should have had full judgment in his favour because the first bill failed to disclose the whole of the solicitor’s claim and which items had been allowed on taxation, only those for which the solicitor claimed extra costs.
Bramwell B held that the rule should be absolute. Relying on Ivimey v Marks, the failure to state the items on the taxed costs meant that a bad part of the bill rendered the whole bill bad, despite the jury finding that the client was partly liable for the bill.
Motion for a non-suit by a client on the basis that no signed bill of costs had been delivered because the bill that had been provided did not include sufficient information. The client objected to part of the bill, namely the charges under the heading “yourself ats Walker”, which contained descriptions of “Attending on the charges of plaintiff’s attorneys herein”, “writing for particulars”, “instructions to defend” and “Agent perusing correspondence, and attending plaintiff’s attorneys; conferring and inspecting original writ; arranging amount of costs; when, under the circumstances, plaintiff’s attorneys agreed to accept 19s. 6d. in discharge of debt and costs”.
The Court held that the bill was not inadequate because it was reasonably clear to the client that the business was conducted in one of the Superior Courts at Westminster. Applying Keene v Ward, it was held that the test was whether there were sufficient materials for the client to obtain advice about taxation, and even if the section of the bill objected to had been bad, it would not have invalidated the rest of the bill.
Erle J said that Keene v Ward and Cook v Gillard established that a client does not have a right “to use astuteness perversely to misunderstand” the information contained in a bill, and that “The true principle, it seems to be, that the bill should give such reasonable information as would easily enable the client to ascertain if the charges are right”. Erle J also made the following observations:
“The principle laid down in Keene v Ward that all that is required is that the bill should supply sufficient materials for advice, is not, I think, any where disputed; but it is said that in applying it, we must consider it indispensable that a solicitor on reading the bill may be able without asking for further information, to advise whether the items are overcharged; and that for this purpose if any of the items are for business in court, it is indispensable that the court should be named. Now I am sure no bill that contained charges for anything beyond mere steps in a cause ever did contain this full information. No person on earth by reading a bill of costs without further information can tell what is a fair charge for such an item as “advising you”. It may have been a minute’s work; it may have required a week’s careful consideration. No man, unless there were interminable prolixity in the bill, could tell from the bill alone what is the fair charge for matters depending on the quantum meruit, that is, for almost everything except mere steps in a cause. It seems to me that the statute with regard to solicitors’ bills ought to be construed on the principle on which we act with regard to particulars of demand. The bill should give reasonable information; if the client wants more he may demand it. Formerly, the law has been administered as if it were the object of the Act to enable a fraudulent client to defeat his solicitor on a mere matter of form which it would be ludicrous to suppose to have misled in point of fact. But in Cooke v Gillard, after an elaborate review of the law, a rule was laid down, applying which to this bill I find no item insufficient. But I am further of the opinion that, supposing there was one bad item, it would not prevent the plaintiff from recovering for the rest. The doctrine that it would is founded on what was thrown out in Ivimey v Marks that a solicitor applied to for advice cannot tell whether the sums which he thinks overcharged form one−sixth of the whole, unless he sees all the items. It may be desirable that he should be able to tell this; but the evil arising from enabling a client to lie in wait with a formal objection, and dispute the whole bill because of the absence, as to some one item, of information which he never asked for or needed, greatly outweighs this. To decide that one bad item vitiates the whole bill is to affirm that the legislature intended a fraudulent client might lie in ambush with a technical point until the moment of trial.”
Lord Campbell CJ said that “the bill must disclose on the face of it sufficient information as to the nature of the charges”. He went on to say that “I do not think that the Legislature intended to throw on a solicitor the burthen of preparing a bill such that another solicitor on looking at it should, without any further statement, see on the face of the bill all information requisite to enable him to say if the charges were reasonable”.
Crompton J said of a solicitor’s bill that “I think it would be a very dangerous rule to require the description to be such as to enable a person of competent skill on reading the bill to say, ex facie, whether it is reasonable. I think it should be sufficient if it contains such reasonable information as, coupled with what the client must be able to tell him, would be sufficient to enable him to judge.”
Importance of this case: This case emphasises that a bill will be adequate as long as it is reasonably clear what the client is charged for. The idea that another person viewing the bill should be able to assess whether the charges are reasonable was rejected. The Court affirmed the principle that it is not simply by looking at a bill that a lawyer can advise whether to seek taxation, but rather than the client must provide the lawyer with information about the work performed in order to obtain advise about the charges.
The solicitor entered onto an agreement for a fixed fee of 50L for business done and subsequently sued the client for non-payment of that amount. The client inter alia pleaded that no sufficient bill had been delivered by the solicitor. The bill delivered charges 50L for one item, with the remaining items left blank, save for disbursements. The trial judge refused to enter a nonsuit against the solicitor and the jury subsequently entered a verdict in his favour. However, Mellor QC obtained a rule nisi to enter a nonsuit on the ground that no signed bill had been delivered.
Counsels for the solicitor shewed cause by submitting that solicitors were entitled to enter into fixed fee agreement with clients, subject to the Courts interfering. Mellor QC and H Lloyd found in support of the rule nisi that no signed bill had been delivered because it was not in taxable form.
Erle J held that the statute required that the signed bill be drawn and framed in order for the client to be able to have it taxed. Because of an attorney’s superior knowledge of professional costs, the law should prohibit solicitors from reaching agreements with their clients that may entitle them to more than they otherwise would, as this would deprive clients of the protection that the statute intended. Williams J agreed with Erle J, holding that such agreements were void as manifestly contrary to the general policy of the law. Willes and Bryles concurred. The solicitor was nonsuited.
Duffett v McEvoy  UKPC 1
A solicitor’s bill at first instance had been held by the Supreme Court of Victoria to not been a bill as required by statute. The solicitor argued that the result was that there was no jursidction to refer the bill for taxation or to order that bills be delivered, because the power to order bills to be delivered was merely ancillary to taxation and the client had sought taxation more than 12 months after payment.
The Privy Council concurred that the solicitor’s bill was not a bill as required by statute, and held that it was not necessary to order the delivery of bills for the purpose of taxation. The Privy Council held that the Court could order the delivery of bills in order to determine whether there are special circumstances that would cause it to be taxed more than 12 months after payment. The appeal was dismissed.
The solicitor acted for client at an agreed price and sent him bills which the client then expressed satisfaction with and signed. Many of the bills merely contained descriptions of “costs” or “account of costs”. The client then changed solicitors and sought the delivery of bills of costs.
The Court held that no bill had been delivered, and therefore there was no entitlement to payment of the solicitor’s bill. The solicitor was ordered to deliver bills of costs.
Lumsden v the Shipcote Land Co  UKLawRpKQB 73; (1906) 2 KB 433 (25 May 1906)
The firm sued more than one month after delivering a bill. The clients denied indebtness, and also said that the firm was limited to the amount of an earlier bill that it had delivered. A jury found for the firm on liability, and the judge gave judgment on the amount found to be due in the taxation, and refused leave to carry on in taxation for the second bill.
The firm appealed, arguing the cases not permitting a solicitor to send in a second bill of costs after delivery of a previous one are confined to reductions of the first bill delivered, and relying on Loveridge v Botham and In re Cartwright.
Vaughan Williams LJ noted the defendants had defended the suit on grounds of liability and had allowed the matter to go to trial. Vaughan Williams LJ held that juries should only decide liability, and quantum is for the taxing master to determibe, therefore the direction for a taxation should have been made to ascertain the amount for which judgment ought to be entered.
Stirling LJ concurred, and held the primary judge erred in treating the question of taxation as one under s37 of the Solicitors Act which precludes taxtaion after a verdict. Stirling LJ held that the Court has power to refer to taxation in order to determine the proper amount to be paid to the firm.
Fletcher Moulton LJ also concurred that the appeal should be allowed, and held the fact that the action had been brought on a second bill afforded no valid defence to the claim.
The appeal was allowed.
The client had been served with and paid an account for party-party costs after an unsuccessful petition in the High Court and a costs order against him. The Plaintiff firm delivered a bill for its costs omitting the items allowed on the party-party taxation of costs. The client’s defence to the firm’s claim was that no proper bill of costs had been brought before the action.
Referring to Cook v Gillard and Haigh v Ousey (supra), the Court held that the firm‘s bill gave all the information that can reasonably be required in the circumstances. Although the costs recoverable in subsequent proceedings before justices were not recoverable because of the binding precedent of Cale v James, the fact that the bill contained items for such work did not make the bill bad.
This case upheld the principle that it is not just the bill itself that establishes whether the client has sufficient information about the fees and charges, because the documents and knowledge that a client is presumed to have are also relevant. A client cannot rely on a defect of form in a bill if they know enough from other sources of the work that was performed on their behalf.
Osborn v Osborn  3 K.B. 862
The firm had acted for the client in a successful action in which the other party was ordered to pay party-party costs, which he subsequently did following taxation. Upon request, the firm later delivered to the client a bill which included the party-party costs. The bill was made out in two columns so as to shew in the first column the several items of the taxed bills amounting in the aggregate to the above-mentioned sum of 1289l. 11s. 6d., and in a second column the additional items claimed by the solicitor as between solicitor and client.
The client by summons then sought that the bill, insofar as it related to solicitor-client items be taxed, and initially a Master made an order for taxation. The client contended to the Master that the party-party items were not part of the bill to be taxed, as they had already been taxed. The Master disagreed. The client then sought delivery of bills by the firm for the solicitor-client costs excluding the party-party items which had already been allowed on taxation. The Master dismissed this summons with costs, and an appeal to Channell J. was also dismissed with costs.
The Court of Appeal held that if and in so far as this taxation was to take place under the Solicitors Act, 1843, the Master did right in refusing to make the order asked for, as the earlier taxation of party-party costs did not form a ground for making a special order for taxation. Whilst there was jurisdiction to order taxation of part of a bill, that jurisdiction existed not under s. 37 of the Solicitors Act, but under the inherent jurisdiction of the Court apart from the statute.
Buckley LJ observed that:
“A solicitor’s bill against his client for costs in an action in which party and party costs are recoverable against the opposite party ought to contain the whole bill of the fees, charges, and disbursements in reference to the business to which it relates and not merely a bill of the extra costs chargeable as between solicitor and client.”
Buckley LJ held that the bill was sufficient because it complied with that requirement.
The client consulted solicitors to advise her on questions of domicile, custody of her children and maintenance from her husband. They took counsel’s opinion and settled a draft petition for judicial separation. She then changed solicitors. The first solicitors delivered a bill in lump sum form containing a very detailed description of the work they had done on her behalf.
Lord Denning held that the bill for non-contentious business is sufficient so long as it states what work was performed for the client. However, because of the Court’s finding that the work was partly in respect of contentious business, the bill was held to be insufficient.
The firm had acted for the client in a drawn-out extradition matter. The firm sued for ten unpaid bills. The aggregate amount claimed was £214,979.86 plus interest. The client alleged that the bills were inadequate. The bills were in the form of an amount charged for fees in the costs column with the description of “general services”, followed by a number of itemised disbursements. However, the bills delivered were accompanied with print−outs of computerised time records of the firm that stated the various forms of activities engaged in by the firm together with the names of persons engaged in them, the date of their engagement, the time occupied and the consequential cost.
The parties agreed that the test to be applied was that enunciated by Crompton J in Haigh v Ousey. At first instance, it was held the bills did not provide sufficient information for the client to obtain advice and make up his mind on taxation.
The firm appealed with respect to the first nine invoices.
On appeal, it was held that as the client did not deny receiving the print−outs of the firm’s computerised time records and it was not in dispute that all or nearly all of the work was in respect of the one matter, the bills combined with the computerised time records would have been sufficient for the client to obtain advice as to taxation. Nourse LJ commented that:
“Against that, Mr Reid, for the defendant, makes a number of points. First, he says that the bills themselves, which simply refer to “General Matters”, are entirely insufficient. Had there been nothing more than the bills, I would have seen great force in that submission. Secondly, Mr Reid says that the defendant, although he knew that the plaintiffs had devoted an immense amount of time to his affairs, did not know whether the fees which they were charging were reasonable. As to that point, I am bound to say that this is not a case where the defendant is unable to judge as to the justice of the amount of the fees which are charged. He had been told from the start that he would be charged at hourly rates attributable to the particular grade of person who transacted the business on his behalf.”
Importance of this case: If the bill is accompanied by further information such as the computerised printouts of the firm, if it states the various forms of activities engaged in by the firm, the dates, the time spent and therefore the cost, it may be held to make the bill sufficient. Also, if it is not in dispute that significant time was spent on the client’s matter, this case seems to indicate that a client can’t claim they are unable to judge the fairness of the charges, presumably because they would already know enough about those charges.
The firm acted in a partnership dissolution dispute and rendered 23 bills to the client, who was himself an experienced solicitor. The client paid some of the bills, but failed to pay others, and the firm sued him. At first instance, the client applied shortly before trial to strike out the claim against him on the basis that most of the bills did not bona fide comply with section 64 of the Solicitors Act 1974, as they failed to disclose sufficient details of what he was being asked to pay for. The application at first instance in the Queens Bench division was dismissed, as it was found that the evidence showed the firm had a real prospect of showing that the client had sufficient information about the fees and charges referred to in the bills. The client appealed.
The judgment contains a lengthy discussion by Ward LJ of the statutory history and the development of the case law with respect to the requirements for solicitors’ bills.
The Court of Appeal reaffirmed the requirement that the client has sufficient information to decide whether to seek taxation and held that the proper principle to be that there must be something in the written bill to indicate the ambit of the work, but that inadequacies of description of the work done may be redressed by accompanying documents. The adequacy of a bill is not to be considered on the face of the bill alone, and exactness of form is not required. The knowledge of the client is also central in determining whether a bill is adequate. The Court of Appeal held that in order to show the firm’s bill has not bona fide complied with the Solicitors Act 1974, the client must show that there is no sufficient narrative to identify what he is being charged for and also that he does not have sufficient knowledge to take advice on whether or not to apply for taxation.
“The sufficiency of the narrative and the sufficiency of his knowledge will vary from case to case, and the more he knows, the less the bill may need to spell it out for him. The interests of justice require that the balance be struck between protection of the client’s right to seek taxation and of the solicitor’s right to recover not being defeated by opportunistic resort to technicality.”
The Court of Appeal held that in this case each bill was obviously and latterly expressly for professional charges, and identified the matter and the periods of time they applied to. Therefore, the claim should not be struck out as the issue of adequacy of the bills (together with the client’s knowledge) was a triable matter and the appeal had to be dismissed.
Importance of this case: This case highlights the principles that a bill must contain sufficient information to receive advice about taxation, the client’s knowledge is central to this question, exactness of form of a bill is not required and the onus is on the client to show they have not been provided with or have sufficient information to obtain advice.
Carter-Ruck (A Firm) v Mireskandari  EWHC 24 (QB) (21 January 2011)
The firm had acted for the client in a claim for libel against Associated Newspapers Ltd. The firm ceased to act because much of the costs were unpaid, and sent a final bill of costs.
On 14 May 2009, after the claimant had threatened to issue proceedings against him, the client requested Ms Basha, a partner of the claimant firm, to prepare the file for a detailed assessment. The same day, the firm issued proceedings against the defendant, claiming fees for professional services rendered in the total sum of £118,180.05, together with interest. The client defended the claim on a number of grounds, including that “the bill of costs was invalid in that it did not comply with section 69(2) of the Solicitors Act 1974 (the 1974 Act)”.
Master Leslie granted summary judgment for the firm, noting the lack of evidence in support of the defence and rejecting the client’s arguments. As to the suggestion that the bill of cost and the earlier invoices had not been adequately particularised, the Master said they were gross sum bills and only needed to be more detailed if they are referred for assessment.
The client appealed the summary judgment and the decisions of Master Leslie.
The Hon. Mrs Justice Swift DBE found that “the information within the bill and invoices was sparse, although it was in my view sufficient to constitute the “something” referred to by Ward LJ in Gwillim”
Because there was a considerable amount of other information available to the client, Justice Swift DBE held the bill was sufficient and the objection to it was unmeritorious.
Justice Swift DBE held that:
“Master Leslie was fully entitled – indeed correct – to conclude that the defendant had no reasonable prospect of successfully defending the claim.”
The appeal was dismissed.
Spillane -v- Dorgan  IECA 84 (14 March 2016)
The solicitor had acted for the client in matrimonial proceedings instituted by her husband in the Circuit Court and furnished the client with fee estimates on 18th July, 2005, and 29th May, 2007.
On 12th November, 2007, the solicitor furnished the client with a bill for €120,855 which was stated to be in respect of “All work done in this connection to include client appointments, phone calls, all correspondence, consultations with counsel and attendances at court” and set out fifteen items of outlay.
After requesting an itemised bill of costs, the client applied for orders for an itemised bill of costs to then be referred for taxation. The solicitor held that more than 12 months had elapsed since the bill had been provided to her, and the client alleged the bill was not a proper bill of costs.
On the 7th July, 2014, Charleton J. refused the solicitor’s application to have the proceedings dismissed and granted the client the relief sought in her special summons.
The solicitor appealed.
The solicitor submitted that the trial judge erred in law in concluding that the 12 month period provided for in section 2 of the 1849 Act only starts to run against a client wishing to contest a bill of costs when they have taken delivery of a bill that is in conformity with order 99 rule 29 (5) of the Rules and the client’s claim was in any event statute barred by virtue of the Statute of Limitations Act 1957.
Ms. Justice Irvine held that a bill of costs need not be in conformity with order 99 rule 29 (5) of the Rules to be a proper bill that commences the 12 month period for the client to demand taxation. and the client’s claim was in any event statute barred by virtue of the Statute of Limitations Act 1957.
Ms. Justice Irvine held that Charleton J. had incorrectly interpreted s. 2 of the 1849 Act by reference to the provisions of the Rules of Court and opined it was unlikely that he was fully appraised of the likely complexity of the matrimonial proceedings, the extent of the assets to be transferred to the client on foot of the settlement and the correspondence concerning the size of the solicitor’s file, which together with other factors did not make it appropriate to exercise the inherent jurisdiction of the Court to order taxation.
The appeal was allowed.
The clients sought an order for a final statute bill or bills from the firm in relation to proceedings brought against them by Ottercroft Limited.
The interim bills the firm had delivered all stated that:
“Re: Claim by Ottercroft Limited – Interim account for the work undertaken on your behalf in respect of this matter to the date hereof.”
The final bill replaced the word ‘Interim’ with ‘Final’, and only the last 3 bills contained or were accompanied by a narrative explaining the work that had been done in the period covered by the invoice.
Master Gordon-Saker held that without more, the bills did not contain sufficient information, or indeed any information, of the work done between 8th September 2011 and 28th February 2014 so as to constitute a bill complying with the 1974 Act, but once the clients “had that final bill and the firm’s files they had the information necessary to seek an assessment if they wished; as indeed they did”.
However, Master Gordon-Saker also held that the 22nd July 2014 invoice should be treated as a final bill because at the time of that invoice the clients did not have sufficient information, it was only after they recieved the solicitor’s files they had applied for taxation.
The firm was ordered to deliver a final bill.
Iwuanyawu v Ratcliffes Solicitors  EWHC B25 (Costs) (12 June 2020)
The client sought an order for the detailed assessment of 13 out of 14 bills delivered to her by a firm of solicitors in Sittingbourne, who acted for her in matrimonial proceedings.
The detailed assessment of the first 6 bills was opposed by the firm because the first 2 bills had been paid more than 12 months before the issue of proceedings, and the latter 4 bills had been paid before but within 12 months of the commencement of proceedings, and so the firm claimed the client would need to show special circumstances. The client in response to these arguments submitted that the bills did not contain sufficient information to be valid bills, and therefore she was not precluded from seeking detailed assessment of the costs.
Citing Ralph Hume Garry (a firm) v Gwillim 2002 EWCA Civ 1500 and Eversheds v Osman, Master Gordon-Saker held that the bills did contain sufficient information to enable the client to know what she was being charged for, as each bill set out the date on which work was done, what work was done and each communication identified who the communication was with. However, as the client care letter was held to not enable the firm to submit interim statute bills, the 14 bills delivered by the firm were not interim statute bills, but were part of a running account which should together be regarded as one bill delivered on the date of the last, and hence there was no need for the client to demonstrate special circumstances.
The client asked the firm to send him their bill, and on May 13 the solicitors sent in what they described as a copy of a draft bill of costs with a covering letter saying it was subject to them revising the bill in the event of taxation. Subsequent correspondence took place, in which the solicitors treated this draft bill as a bill formally delivered.
The firm later applied for taxation of a revised bill. In the first instance, the Taxing Master agreed to tax the bill. Then an application was made to him to review his taxation, and on that application he came to the conclusion that he must reject the whole bill. In so doing he took the view that the English cases dealing with the law on the subject prevented a solicitor from delivering a fresh bill after having already delivered a previous bill.
On application to the Chamber Judge to review the order of the Taxing Master, the primary Judge had held that the view of the Taxing Master was right. The primary Judge also highly disapproved of the terms of the correspondence of the firm, and ordered the costs of the proceedings should be borne by the solicitor. The firm appealed.
John Beaumont, Kt., C.J. held that the object of the rule in England that a solicitor is not allowed to substitute a bill with a later bill is to protect the client from having exorbitant bills delivered. Unlike in England, there was no law or rule in Bombay that required a solicitor to deliver a bill before suing for unpaid fees, or that the party chargeable would have to pay the costs of taxation if less than a sixth is taxed off. John Beaumont, Kt., C.J. held that the taxing master has a wider discretion in India and that there is no sufficient reason for holding that the English rule that a solicitor must be bound by a bill once delivered applies to this Court. Therefore, the decision of the Taxing Master and the learned Chamber Judge was not correct.
Chief Justice Beaumont also held that the primary Judge should not have considered the terms of the correspondence of the firm in the costs decision, as to do so would “confuse the functions of a Judge with those of a school-master”. The client should pay all costs of the firm throughout, except the costs of the order by the learned Chamber Judge on September 5, 1934.
Rangnekar, J. cuncurred, and noted that the offensiveness of the firm’s correspondence did not increase the costs.
Rangnekar, J. also held that in England it is competent for a solicitor to send a bill of costs to the client at his request subject to a condition, and that ought to be allowed, however the condition must not be such as would “open a door to fraud”. On the facts of this case, a bill as such was not finally delivered or intended to be delivered to the client even within the meaning of the English rule, and Rangnekar J was not prepared to say that the condition was not fair.
The appeal was allowed.
The solicitor had acted for the client in an estate dispute. The solicitor duly lodged his bills of costs of that suit up to preliminary decree and under some orders made in that suit prior thereto, and the bills were taxed upon notice to the client and allocatures were issued in favour of the solicitor. The party and party portions of the said taxed costs with interest thereon were realised by the solicitor from the executor defendants in that suit but the sums of Rs. 149-7-6 and Rs. 1752-2-0 allowed as costs as between attorney and client and Rs. 357-0-6 being the amount double crossed up to the preliminary decree remained unpaid.
The client raised a defence under the Limitation Act, and the solicitor argued that the period spent pursuing his application under Chap 38, R. 59. should under S. 14, Limitation Act be deducted from the computing of the limitation period.
The client, relying on Damodar Das v. Morgan & Go., 1933-60 Cal. 1442: (A.I.R. (21) 1934 cal. 34l), also contended that the solicitor had no right to appropriate moneys received in one suit towards his claim in respect of other works done by him for the client.
Sudhi Ranjan Das, J. held that the solicitor was entitled to the benefit of S. 14, Limitation Act. Therefore, inasmuch as the solicitor did some work after 4th July 1905 and as his suit for costs was filed on 4th July 1908 the suit was not barred and the solicitor was entitled to recover the balance of his costs.
Sudhi Ranjan Das, J. also held that the solicitor was entitled to appropriate moneys received in the earlier action. The solicitor’s claim was reduced by the amounts he had already recieved on account of party party costs and monies appropriated towards the costs of another suit.
After discussing the English case law relating to a solicitor’s right to payment commences, Sudhi Ranjan Das, J. said that:
“an attorney’s retainer in a suit is an entire contract, that the suit is terminated by judgment, that notwithstanding the termination of (he suit: the attorney’s authority continues and that th& attorney is not entitled to any remuneration before the contract is entirely fulfilled unless he can bring himself within one of the exceptions. One of the exceptions I have mentioned is that when the suit is terminated by judgment and there is no appeal the attorney becomes entitled to hie remuneration up to judgment and to sue for his bill.”
The result was a decree in favour of the solicitor for Rs. 30,568-13.3 and interest thereon at 6 per cent per annum from date of suit up to the date of the decree.
The firm had brought an action in the County Court at Melbourne against the clients. The firm had delivered the particulars on a signed bill on 24th January, 1862, for £175 Os. lId., and by their particulars of demand, dated 25th February, claimed the like amount. This amount comprised a sum of £141 lIs. 6il. due to the present firm, for costs in an Equity suit, and also a sum of £33 9s. 5d. earned by and due to the earlier firm of Muttleberry & Malleson. Halleson. The clients pleaded, among other pleas, non-delivery of a signed bill, and set-off; and on the 20th December they obtained an order of a Judge of the Supreme Court to tax all the bills due to both firms, and to allow credits on both sides. The taxing officer certified that, after giving credit to the amount of £149 5,., there was due to Muttlebury ~ Malle £15 15, and to Muttlebury, Malleson ~ Eng Umd £139 l,4a. He certified that nothing had been paid on account of the latter debt to the latter firm, and that that sum was then due to them.
At trial, the clients argued that no signed bill had been delivered and they offered evidence of set-off and of facts which had occurred prior to the Equity suit, in order to shew negligence. The Judge over-ruled the objection, and rejected their evidence. The clients appealed.
Stawell CJ, following Haigh v Ousey, held that the bill was sufficient:
“The form in which this item is inserted in the bill now under consideration renders it highly improbable that the clients could have been misled. It has been improperly introduced under the supposition that the new firm would pay the debts of the old, but as the bill is for professional business in an equity suit, the introduction of an item for business prior to that suit could leave no doubt that it was not included in the costs of the suit itself.”
Stawell CJ also held that evidence of the items of set-off was not admissible, because the taxing officer had already reduced the relevant items of the firm’s bill in the taxation, which was binding on the parties.
The appeal was dismissed with costs.
The solicitor issued a bill for various matters in which he had acted for the client. The bill contained a statement in detail of the services rendered for each matter, but did not set out separate charges for each service provided. The solicitor sued the executors and trustees of the client by way of summons, and one of them entered an appearance and submitted that the bill failed to comply with section 92 of the Supreme Court Act 1928.
It was held by Mann J that:
“Courts have repeatedly held that a bill of costs must contain such details as will enable the client to make up his mind on the subject of taxation, and will enable those advising him to advise him effectively as to whether taxation is desirable or not.”
Because the bill had failed to set out the charges for each detail or description of work, the solicitor’s summons was dismissed.
Woolf v Trebilco  VicLawRp 13;  VLR 180 (10 April 1933)
The solicitor had delivered to his client a signed bill setting forth items of work done, the appropriate charges and the disbursements. Below the total of the charges and disbursements appeared: “As agreed, 631.l” From that sum was deducted an amount already paid, the balance being shown as due. The client applied under sec. 104 of the Supreme Court Act 1928 for taxation. The solicitor objected that the Taxing Master had no jurisdiction, inasmuch as an oral agreement had been made fixing the charges.
The taxing master, after having heard the solicitor and the client, was not satisfied that the agreement the solicitor contended for had been made and in any event the matter should proceed to taxation. The solicitor took out a summons that the objections be allowed and that it be referred back to the Taxing Master to vary his certificate accordingly. Cussen A.C.J. held that the question of jurisdiction could not be raised upon such summons, and dismissed the application.
The solicitor obtained an order nisi calling upon the Taxing Master and Mrs. Richardson to show cause why a writ of certiorari or a writ of prohibition should not be directed. Macfarlan J discharged the order nisi holding that since the Taxing Master was an officer of the Court he was subject to its direct control. Therefore, it was not a matter for certiorari or prohibition.
The solicitor appealed to the Full Court, and included in the notice of appeal a notice of motion to the Court on the hearing of the appeal that the certificate of the Taxing Master be set aside or varied on the grounds set out in the order nisi for the writs.
Mann J held that Macfarlan J. was correct that inasmuch as the Taxing Master was an officer of the Court, neither certiorari nor prohibition was appropriate. The appeal was dismissed with costs.
Patel v Sica  VicRp 25;  VR 273 (19 June 1981)
The solicitor issued a bill of costs dated 26 March 1980 for professional services performed and for reimbursement of disbursements made for and on behalf of the client as the purchaser under a contract of sale of a property situated at St. Albans. The bill of costs was headed “In the Matter of the Purchase by Bharat Nanu Patel, Purchaser, of 23 Luxford Street, St. Albans, from Marte Batinovic, Vendor, for $55,000, the professional costs of Messrs. Sica and Co. Solicitors for the Purchaser, on the Solicitors’ Remuneration Order 1976, General Order 2A(a)(ii) and General Order, First Schedule, PtB, references 79 and 80.” Thereunder there were set out 11 items, without specifying a charge for each item, for which a charge of $205 was made for professional services and $35.50 for eight items of disbursements and a charge for each.
The solicitor sued for the unpaid bill, and Counsel for the client submitted to the Magistrate that, because the bill of costs was not in a taxable form, it was not one upon which the solicitor could sue. The Magistrate rejected that argument.
An order nisi was made on 7 August 1980 by Master Brett on the ground that the bill was insufficient. PJ Grey of Counsel, who appeared to move the order absolute, relied on the case of Malleson, Stewart, Stawell and Nankivell v Williams and submitted that the solicitor was precluded from recovering his fees and disbursements by force of the provisions of s81 of the Supreme Court Act 1958.
Kaye J noted that a consequence of the 1927 statute and the Solicitors’Remuneration Order made under the 1928 Act was to enable a solicitor to charge a lump sum for non-contentious business.
Kaye J held that the bill was sufficient because it complied with the requirement set out in Re A Solicitor,  QB 252 of informing the client what work done he is being asked to pay for, and rejected a submission that a solicitor remains unable to enforce a claim on a bill of costs for non-litigious business unless his bill contains item charges.
Piper Alderman v Smoel  VSCA 42 (9 March 2017)
Appeal by the firm against a finding that their 23 bills were itemised bills because that finding meant that the amount of their charges was limited to the amount of the bills. The Primary Judge held that “the particulars of the charges in the tax invoices and attendance schedules are sufficient to enable the applicants to obtain advice and make an informed decision on the nature of and the reasonableness of the charges and whether or not to exercise their rights to seek a review of the costs reasonably free from the risks of having to bear the costs of the taxation”.
The Court of Appeal noted the following with respect to the statutory definition of an itemised bill:
“The text of s 3.4.43(2) and the definition of ‘itemised bill’ direct attention to the ability to use a bill for the purposes of a costs review. True it is that some of the authorities which focus on the need for sufficient detail in a bill to enable the recipient to make a decision as to the reasonableness of the charges, whether to have the bill taxed and to take advice in that regard may therefore, at first blush, seem to miss the mark for the purposes of the LPA definitions. Moreover, some of those authorities speak in these terms when they are dealing with lump sum, rather than detailed or itemised bills for taxation. However, little turns on this as a bill must at least satisfy that test if the bill is in a form that may be reviewed under Div 7. Given the statutory language in the LPA, it is perhaps better to express as an overarching requirement for an itemised bill that it include sufficient detail so that, if the bill proceeded to a review, the parties would have enough information to understand what work has been charged for, the amount charged for the work performed, whether any particular charge is sustainable and to make submissions to the judicial officer presiding in the Costs Court.”
The Court of Appeal held that the bills, although for some charges inadequate, were generally sufficient. Leave granted to appeal, but Appeal dismissed.
Importance of this case: Itemised bills need not contain detailed descriptions, and even if some items are inadequate, this does not make the bill a lump sum bill.
After acting for the client in some non-contentious business, the firm delivered a very brief account dated 1st August 1974 for $5,242.32 (the first bill). After the client asked for details, the firm delivered a detailed bill dated 26th November 1974 for $32,409 (the second bill). The client then sought that the first bill be taxed, or alternatively that the second bill be taxed, but that the amount claimable by the firm be limited to the amount of the first bill.
Bowen CJ in Eq rejected the firm’s contention that the first bill had been rendered upon a condition of “reasonably prompt payment”.
Bowen CJ held that the authorities showed that in order to be a taxable bill under statute, the bill had to set out separate charges for items of work and also provide such reasonable information as would enable the client to take advice as to its taxation. Therefore, the first bill was not a taxable bill. Bowen CJ further opined that it was doubtful whether a lump sum bill could be referred for taxation. Bowen CJ held that the second bill was a bill in accordance with the Legal Practitioners Act. An estoppel argument advanced by the client was rejected because there was no evidence of the client having relied on the first bill in any way. As a result, Bowen CJ held that the firm was entitled to claim for the amount of the second bill.
The solicitor sued the client in the District Court to recover the balance of his professional fees and expenses for acting in connection with the defence of the client’s son on a criminal charge of conspiracy to murder. The client defended the claim on the sole basis he had not engaged the solicitor, but that defence failed and judgment was entered in favour of the solicitor. On appeal, the client contended, and the solicitor conceded that due to a lack of itemisation the bills were not bills within s. 21(1) of the Legal Practitioners Act 1898.
Moffitt P (with Hutley JA agreeing) held that the client should not be prevented from raising this new argument on appeal, because the solicitor was not entitled at law to recover his fees, the client was ignorant and self-represented, and all the relevant material was before the District Court. The appeal should be allowed with costs, however the client should pay the solicitor’s costs up to trial and the solicitor should receive a certificate under the Suitors’ Fund Act.
Mahoney JA dissented, noting that the client had accepted a bill had been delivered at trial, and had never disputed the quantum. Because he had not availed himself of a defence with respect to the bill, it could not be later relied on.
Henchman v Hannes BC9302176 (unreported) (14 September 1993, 22 October 1993)
The Plaintiff firm sought various declarations against their former client, whom they had acted for in proceedings against her husband over a number of years. The basis of the defence was that the accounts sent to the defendants did not constitute bills of costs, and therefore the firm had contravened s198(1) of the Legal Profession Act (NSW) by commencing proceedings before issuing bills of costs.
Most of the bills had very brief entries such as “attendance”, “conference”, “review documents”, “letter” etc. However, bills from August 1991 to June 1992 were more detailed, eg “letter to client”, “telephone Family Court re file”, “attend collating files” and “peruse letter from husband’s solicitors”.
The Court held that the bills from August 1991 to June 1992 did constitute bills of costs but that the balance did not. The Court also held that there’s a difference between requirements of a bill and what may be required on assessment:
“Care must be taken to differentiate between what is required in a bill and what might be necessary for the purpose of carrying out a taxation of that bill. The latter may require further detail and particulars to be given in order to satisfy a taxing master that the nature of the work justified the charge which was made. As the judges in Haigh v Ousey, above, said, it is not expected that the detail given in the bill will supply sufficient information in order to say if the charges are reasonable. Nevertheless there must be enough detail to enable the client to know what was done during the time for which a charge was made.”
Importance of this case: This case shows that in NSW, an itemised bill only needs to state enough information to say what was done and with/to whom. 1-3 word descriptions of work performed are generally inadequate because they say very little about the specific items of work done. However, brief descriptions are fine if they provide clients with sufficient information to know what they are being charged for.
McGrath v Roe BC9601315 (unreported) (22 March 1996)
The firm had obtained judgment against the clients. The clients sought delivery of bills from the solicitors and consequential relief by summons, alleging that five of the bills were not in proper form. The firm alleged that three of the bills were proper bills of costs.
Referring to the cases of Haigh v Ousey and Henchman v Hannes and other cases, it was held that the case law of whether a bill is a bill of costs is a question of whether there is sufficient information for the client to obtain advice as to taxation.
The Court held that a client should know about letters written to them, but may not recall the substance of telephone calls many years later.
The Court also held that the last part of one bill containing generalised headings for charges for preparation was “quite inappropriate” as it offended the principle in Henchman v Hannes and would make it difficult to assess whether it should be taxed. Another bill had no identification of phone calls and letters which consisted of about 20% of the bill. The third bill contained generalised descriptions without listing the activities. Held that the bills were inadequate.
The firm was ordered to deliver bills of costs to the clients and a stay on enforcement of most of the judgment was granted.
A case in the NSW District Registry of the Federal Court concerning NSW legislation concerning lawyer bills. The firm had acted for the clients in proceedings commenced by Westpac Banking Corporation and Bill Acceptance Corporation Ltd in the Supreme Court of New South Wales.
On 28 August 1995 the firm served statutory demands on the clients relating to bills of costs said to have been rendered under the costs agreement.
One of the bills of costs had after a heading and before a list of outlays, the following narrative:
“TO: Our costs on and from the 11th April 1995 including Perusing
File, perusing letters, from Clayton Utz (CU) in respect of the
documents, looking at issues outstanding, looking at draft Minutes
and considering the matter generally, Perusing letter from CU
dated 5th April 1995 in respect of the access to the Freehills
documents, Letter to David McGovern enclosing re-constituted
Brief, Index and Love and Rodgers Report, Amending Swan’s first
Statement … “
The clients applied to set aside the statutory demands. The clients alleged that the bills referred to in the schedule to the demand were not themselves proper bills of cost and did not in consequence create debts that were due and payable, and also that they had offsetting claims founded primarily on allegations of negligence by the firm and of failure to comply with instructions given.
Finn J held that the pre-May bills did not allocate specific charges to each item of work and accordingly did not constitute bills of costs for the purposes of the Act. They were not capable of creating debts due and payable or found a statutory demand. For the remaining bills and offsetting claims, there were serious questions to be tried. The statutory demands were set aside.
Gorczynski v Beilby  NSWSC 884 (5 September 2005)
Appeal by clients against a determination of a costs assessor to allow the firm to withdraw its bill and issue a more detailed one for a higher amount. The accounts delivered to the clients during the retainer showed the date and service performed as well as the number of units. When a dispute arose, the firm asked the clients to pay the outstanding costs and they refused to do so. The firm subsequently issued proceedings and obtained default judgment against the clients. The clients successfully had the default judgment set aside due to the firm grossly overclaiming on the invoice and the firm later withdrew their claim with indemnity costs because of defects with the invoices, including that they were not addressed to the defendant. The firm then retained costs assessors to draw up bills of costs, which exceeded the amounts originally claimed. The firm relied on the case of Florence Investments Pty Limited v H G Slater & Co  2 NSWLR 398.
The Court held that the original bills were not in taxable form due to lack of narrative and failures in many cases to identify who performed the work.
Importance of this case: This case establishes there is a difference between an itemised bill and a bill that may be required on an assessment. This case also indicates that in some cases short descriptions of the work may be insufficient to make the bill one in taxable form, particularly if the bill does not indicate who did the work and telephone calls made to the client were years old.
Motion by a client to set aside judgment in default of appearance. The client contended that no bill in taxable form had been provided to him prior to the commencement of the proceedings. The bill consisted of a statement of account containing charges for each matter in respect of individual matters the solicitor had acted for the client with no particular allocation of costs for any particular actions done by the solicitor.
Following the judgment of Malleson Stewart Stawell and Nankivell v. Williams  V.L.R. 410, it was held that the bill was not a bill of fees charges and disbursements as required under section 22 of the Costs Act of 1867. The judgment was set aside, however due to the client’s inaction which led to the judgment, costs were awarded to the solicitor. The solicitor was granted leave to deliver a fresh bill of costs.
Application by the client, a public company, for delivery of bills in taxable form. The firm sought declarations that they had a valid and enforceable agreement within the meaning of s.3 of the Solicitors Act 1891. During the retainer, the client and firm had verbally agreed that the bills would be presented in lump sum form and then later in taxable form. There is a discussion of the cases at 292 establishing that payment of costs was no bar to client requiring delivery of bills in taxable form. The question was whether the bills were bills that fell within section 22 of the Costs Act of 1867.
The Court held that that the information contained in the bills was sufficient because they listed the hourly rates and the time spent on each activity, in context where client was not unsophisticated, and a Sydney firm also engaged by the client was supervising the work. Therefore, the bills fell within section 22 of the Costs Act of 1867 and so the bills older than 12 months could not be taxed unless special circumstances existed. The bills were held to be not ‘redolent of overcharge’, and were consistent with the verbal agreement with the client. The Court held that the bills older than 12 months presented in lump sum form would not be assessed, but those after that time would be.
Importance of this case: quote at 294 from Malleson Stewart Stawell and Nankivell v. Williams  V.L.R. 410 about clients needing bills sufficient to allow them to get advice about taxation. Also:
“if the test be what is adequate in order to enable the client to determine on advice whether to seek taxation, it is reasonable to take into account the degree of business and legal sophistication of the client, whether the client has in-house legal advice, whether another firm of solicitors is also advising, and any agreement reached between the parties as to the basis for charging.”
From December 1991 to May 1992 the firm acted for the client in a criminal matter. A dispute about costs arose, and the client applied to have four bills assessed. The client sought a ruling that he was not out of time because the bills did not comply with the Costs Act 1867.
The bills contained four columns and specified the date the service was said to have been provided or a cost incurred, the service or cost, the time engaged or the length of a document prepared, the basis or rate of charge and in the right-hand column concluded the charge for each item.
Kiefel J held that:
“Here all the bills contain sufficient particulars. They set out separately the fees, charges and disbursements. Subject to the question as to the lack of signature affecting the second bill, I propose to make a declaration that they are bills under the Act.”
Kiefel J then held that the second bill should be delivered again because it had not been signed by the solicitor and that the third and fourth bills should be referred for taxation because they had been paid on the condition that they be taxed.
This case confirms that a ‘narrative’ or significant detail’ is not necessarily required at all, as long as the charges are set out separately and the service itself needs to be specified.
The client applied for an order that the respondent firm of solicitors deliver a bill of costs in taxable form in respect of legal representation in the Planning & Environment Court held at Southport. The firm argued that s.33(1) of the Costs Act 1867 relieved it of any obligation to provide a bill of costs in taxable form because the client had already paid the bills.
Amborse J citing Currie v. Robinson  QWN 25 and Malleson Stewart Stawell & Nankivell v. Williams  VLR 410. held that the bills were not bills of costs in taxable form.
Amborse J rejected the position of the firm, holding that Section 33 of Costs Act deals not with the provision of a bill in taxable form, but deals only with the payment of a bill in taxable form as an event relevant to the reference of that bill for taxation.
Amborse J also said that:
“In Re Flower and Hart’s Bill of Costs  2 Qd R 20 at p. 24, Ryan J applied Duffett v. McEvoy (supra) and held that this Court has power to order delivery of a bill of costs whether or not costs have been paid and whether or not when delivered the bill is one which will necessarily be referred to taxation.”
The firm was ordered to deliver a bill of costs in taxable form and costs were reserved.
R G Kilner & Black, Re Costs Act 1867  QSC 307  1 Qd.R. 188 White J QSC95-307
The firm acted for the client in the Planning & Environment Court as well as a private prosecution in the Magistrates Court followed by an appeal in the District Court, and later sued for its outstanding fees. The firm obtained judgment in the Magistrates Court for $3,871.76, the full amount claimed. One of the bills contained a general description of the professional fees and outlays, accompanied by timesheets setting out the work in more detail. The client sought orders that the firm “deliver signed, itemised bills of costs in taxable form” for work done by them on his behalf and that an enquiry be carried out to determine whether the costs relating to the Magistrates Court prosecution were “thrown away by the negligence, deceit or failure of duty of care of the said solicitors justifying disallowance of such costs”. Alternatively, the client sought that any bills found to have been delivered incompliance with the requirements of s. 22 of the Costs Act be referred for taxation.
After some discussion of the relevant case law including Re Walsh Halligan Douglas’ Bill of Costs  1 Qd R 288 and Malleson Stewart Stawell and Nankivell v Williams (1930) VLR 410, White J held that the original memorandum of fees sent under cover of letter dated 17 October 1991 dealing with the Magistrates Court prosecution and that of 16 April 1992 dealing with the taxation of Peter Channell & Associates’ costs are not bills within the meaning of the Costs Act, however the documents dated 13 & 15 October 1992 were. It was found that the firm should not have been able to obtain judgment in the Magistrates Court because no bill that complied with section 22 of the Costs Act had been delivered, and “There is good reason to stay execution on the judgment obtained in the Magistrates Court”. White J opined that the account of 1 December 1992 should be taxed. The firm was ordered to subscribe the memoranda of accounts dated 1 December 1992 and 6 January 1993.
Application by members of company for termination or permanent stay of winding up and review of fees and expenses of provisional liquidator and liquidaton, including legal costs incurred by them in retaining Baker Johnson. Baker Johnson’s fees and outlays were set out as follows:-
File No. Description Fees and Outlays
96.2582 winding up $4,788.60
97.1059 recovery of voidable payment 19,328.65
96.2583 injunction 6,034.05
97.2835 stay of winding up 6,500.00
(an estimate only)
97.1066 mareva injunction 2,697.60
96.2350 examination 12,093.00
Mr Justice Shepherdson noted there was nothing in the evidence to suggest that creditors at the meeting of 11 December 1997 were presented with any detail beyond the “one line” or “lump figure” of $16,007.85. Furthermore, Baker Johnson’s bills were held not to be bills of costs and said that:
“In my view, when a provisional liquidator seeks to have his remuneration determined by the court he should provide a document not dissimilar in form to the Bill of Costs in taxable form provided by a solicitor to his client (see Order 91 Rule 47). He should identify the person or persons and the grade or grades of the person or persons engaged in the particular task concerning the provisional liquidation, he should identify that task and dates on which time was spent on it, the amount of time spent on it and he should identify the relevant rate, according to the grade of the person or persons performing the work. I also consider that he should require the person performing the work to keep reasonably detailed diary notes and time sheets which documents should be open to inspection by persons entitled to see them.”
The client sought orders that the firm deliver bills of costs in taxable form in relation to all work charged to the applicant in their memoranda of fees dated 27 September 1994 and 23 February 1996 and that those bills then be taxed. The firm had delivered a 15-page bill which listed each item, and the date assigned to each item, but with no charge assigned to each. It was found this was not a bill in taxable form. Although the client had been charged $43,000 for the work, Ryan Cost Consultant had assessed the amount allowable at $28,424.50. The firm opposed the orders sought by the client, pointing to prejudice.
Shepherdson J ordered that the firm deliver bills of costs for taxation due to the disparity between the amount charged and Ryan Cost Consultant’s assessment.
Von Risefer v Smith  QDC 32 (10 March 2000)
The firm had acted for the client in litigation. The firm then sued for three unpaid bills of costs, and obtained summary judgment against the client in the Magistrates Court. The client appealed on the basis that the bills were not bills in taxable form as required by s.5 of the Legal Practitioners Act 1995.
It was held that although the bills were not bills in taxable form, they were sufficient for the purposes of s.5 of the Legal Practitioners Act 1995, as they gave the client sufficient information to enable her to determine whether or not to request taxation. The appeal was therefore dismissed with costs.
On 20 July 1999 the firm commenced a proceeding in the Magistrates Court at Brisbane claiming from the clients $1,094.40 for professional work done and disbursements incurred by it pursuant to an invoice dated 25 June 1999. The invoice listed particular tasks for which a charge was made at a particular rate, and specified the number of such tasks performed. For example, the first item under the heading “Correspondence” was “short letters not exceeding one folio (72 words in length), 5 @ $14.50”. The documents perused were not specified, nor what faxes were sent or received. A covering letter spoke about the purpose of an attendance on the clients.
The clients alleged the Court lacked jurisdiction because one month had not elapsed since the bill was issued, and the Magistrates Court granted leave nunc pro tunc. The clients appealed.
McGill DCJ held that leave to commence proceedings can be granted nunc pro tunc. McGill DCJ also held that the Civil Justice Reform Act 1998 contemplates that some detail would be provided as to the basis upon which charges were being made, so as to enable the client to identify objectionable items, and to formulate meaningful grounds for objection, on the basis of the contents of the account. McGill DCJ held the bill was not sufficient because there was no means by which the appropriateness of that work to the instructions given and the nature of the objective sought to be achieved by the efforts of the solicitors could be assessed, because the purpose of the various steps taken was not revealed. As the firm did not comply with s.48J(1) the appeal was allowed and the judgment set aside.
Importance of this case: This case confirms that further information not contained in a bill can be provided if required on a costs assessment. However, the purpose of the work performed must be apparent on the face on the bill, or in combination with a covering letter.
The clients sought orders for the delivery of their files pursuant to the inherent jurisdiction of the Supreme Court. The firm was requested by the clients’ new solicitors to remit “copies of any unpaid invoices and a comprehensive general and trust account statement with respect to” the firm’s representation of the clients. The firm delivered invoices for outstanding costs and asserted a lien over the files for unpaid costs. The clients asserted the lien did not apply because of alleged negligence and the firm allowing a conflict of interest. However, because these claims were disputed, they could not be relied on. The clients also alleged their request for invoices was one for bills of costs under the Queensland Law Society Act 1952, however this was held not to be the case given the client’s history of being billed by the firm by lump sum bills.
White J held that a clear request from the clients was required and that none was provided. The Application was hence dismissed.
Importance of this case: This case highlights the need for a client to provide a clear request for an itemised bill/bill of costs.
The firm sued for outstanding fees and the clients claimed that by doing so the firm had contravened s 48J(1) of the Queensland Law Society Act 1952. The firm contended that their initial noncompliance had been remedied by a later bill delivered by it.
After a long general discussion of prohibitions and bars to suing, McGill DCJ held that a proceeding brought contrary to s 48J(1) was not a nullity but the firm could not have a good cause of action until one month after it had been complied with, and that leave could be granted nunc pro tunc. The clients’ application to strike out an amended statement of claim filed by the plaintiff firm on 21 August 2002 was dismissed, but the firm was ordered to pay their costs of the part of the proceeding that contravened s 48J(1).
Appeal by members of a firm against a decision of the Supreme Court to deliver the firm’s files to the client, and in effect forfeit their lien of the files. The appeal was based on a challenge to the validity of the client’s request, a point not raised at first instance but which the Court entertained because the point had not received previous judicial consideration.
The firm acted for the client over a five year period (1996-2001) until the client terminated the retainer and made the following request to the firm:
“TAKE NOTICE that we request you to render to us within 30 days bills of costs concerning all work undertaken by you for us since January 1996.”
Rule 84 of the Queensland Law Society Rules 1987 provided that a firm had to provide an itemised bill of costs on request within a reasonable time, and if failing to do so within one month the firm would have to provide the client with all documents and moneys held on the client’s behalf, notwithstanding any lien. Section 48J of the Act provided that such bills are in accordance with a costs agreement entered into between the client and the firm, or that the bill “clearly sets out all items of work done for the client and the amount charged (whether by way of fees or costs) for each item”.
The Court of Appeal held that the purpose of Rule 84 was for a client to be made aware of his or her financial obligations to a practitioner, and that payment of the bill waives that right. The Court of Appeal also held that there is a requirement for requests for bills of costs to substantially comply with the wording of Rule 84 and identify the substance of the matter which is the subject of the retainer because of the significant consequences which flow from non-compliance with the request, and the practitioner should not be left to speculate as to the true focus of the request. The Court of Appeal held that because the request was in general terms and impermissibly included old accounts which had already been paid, the request was not a proper request.
Evidence as to the client’s solvency was also admitted. Appeal allowed.
Importance of this case: This case highlights the need for requests to be sufficiently detailed and coherent in order for them to be proper, and for a party to be later allowed to rely on it.
Application by client for delivery of itemised bills. The firm was the Plaintiff in an action for recovery of its costs and had sought an order for the assessment of its costs. A disagreement arose between the parties as to whether more detailed bills provided by the firm were itemised bills.
Referring to Ralph Hume Garry (a firm) v Gwillim, Re Walsh Halligan Douglas’ Bill of Costs  1 Qd R 288 and Malleson Stewart Stawell and Nankivell v Williams (1930) VLR 410, Judge Reid held that the question is whether the client has sufficient information to obtain advice about desirability of taxation, however exactness of form is not required and that the client must show that further information which they require but do not have has been withheld.
Reid DCJ held that the bills in question were not itemised bills because of vague generalised descriptions given for items of several hours in quantity which were of little assistance, and that the client’s lawyers would not be able to advise the client on the reasonableness of the time charged for the work due to insufficient information. Delivery of itemised bills was ordered and firm’s application for a costs assessment dismissed.
Importance of this case: This case confirms the relevance of English authorities on the question of the adequacy of bills, as well as the principle that the fundamental question is whether the bill contains sufficient information for the client to obtain advice about taxation. In this case, generalised descriptions for large blocks of time charges were held to be insufficient.
The client sought the delivery of itemised bills and costs assessments of numerous bills provided by the respondent firms for various matters.
Applegarth J held that many of the bills were out of time due to “a natural break” at the conclusion of a trial. Therefore, the client had no right to request itemised bills and no costs assessments were to be ordered for those bills.
In respect of the remaining re-issued bills, Applegarth J held that the few examples of allegedly inadequate details of the work performed were not numerous enough to show that they are not itemised bills or that itemised bills should be ordered. No affidavit evidence of a lack of information to advise on taxation or how much information the solicitor acting for client previously who had carriage of their matter with the firm was able to provide. Held that for these reasons, itemised bills should not be ordered.
Applegarth J also held that that discretion of a Court in ordering itemised bills should be in accordance with r5 UCPR, and emphasised the need to avoid a technical ambush by a client. Applegarth J found that client was seeking an advantage over firm by insisting on delivery of itemised bills. Therefore, no order for itemised bills and bills not out of time submitted for assessment.
Importance points to note in this case: Paragraph 77 outlines the Factors relevant to the exercise of discretion in whether to order a costs assessment. Paragraphs 80-83 outline the principles relating to whether a bill is an itemised bill. Paragraph 85 outlines the client’s onus of establishing they have not been provided with an itemised bill. The preparedness of a firm to provide further information is a relevant consideration in the court’s discretion of whether to order the firm provide itemised bills. Numerous discussions and meetings with client evidence that client did follow the proceedings closely. Paragraphs 90 & 93 indicate that a lack of affidavit evidence of insufficient information to advise on taxation is significant.
The firm sought taxation of its own bills, and the client sought the delivery of itemised bills in respect of eight of the bills. Client had confirmed that her queries with respect to four of the invoices had been met, and she held a meeting with the firm in respect of the other four bills.
Boddice J held that a client asserting the information they have with respect to a bill is inadequate for them to seek advice concerning taxation must provide specific details of their concerns rather than just swear to general concerns of overcharging in order to satisfy the onus on them. The client had failed to do so, and therefore the bills were referred for assessment.
Importance of this case: This case highlights the need for a client to show that the information they have is incomplete if they allege that is the case. The onus is on them, and can only be satisfied by descending to particulars. Otherwise, there will be no entitlement to an itemised bill and the bill will be considered an itemised bill if it appears to be so.
Legal Services Commissioner v King  QCAT 260 (2 July 2013)
The Commissioner filed 7 charges against the solicitor. Charged 5 was dismissed by consent, and the remaining charges that were found to be proven alleged the solicitor had breached an undertaking, unlawfully drawn on trust monies, failed to comply with a written notice issued by the Commissioner and failed to comply with provide itemised account. Charges of making a false statement to the Queensland Law Society and failing to fulfil a representation to QLS were found to be not proven.
In relation to the charge of unlawfully drawing on trust monies, the solicitor’s defence relied in an invoice allegedly issued in August 2007. The invoice was as follows:
RE: MATRIMONIAL MATTERS
TO OUR PROFESSIONAL COSTS of and incidental to acting on your behalf in this matter and any and all other sundry matters not herein mentioned, and general care and consideration in your case. This invoice can be itemised if required.
Fryberg J found that this invoice was not sent to the client, but even if it had, it was not a lump sum bill because it failed to describe the services to which it related. As a result, it was not a “bill” within the meaning of section 58(4)(a) of the Legal Profession Regulation which would have made the withdrawal of trust monies lawful.
Murdock v Sterling Law (Qld) Pty Ltd  QDC 226
The client had become uncontactable to the firm, so the firm terminated the retainer and issued a bill for its work over the previous 20 months. The bill generally contained very short descriptions for each item of work, but specified the date, the person who performed the work and the time each took. The firm then sued for the unpaid bill and obtained summary judgment against the client in the Magistrates Court for the entire bill.
The client then appealed, primarily on the basis that the bill was a lump sum bill because brief descriptions for numerous items in the bill such as “attendance with you” and “telephone attendance with you” rendered the bill insufficient to be an itemised bill. Because the client had purportedly requested an itemised bill, and the firm had subsequently failed to provide a more detailed bill, it was contended that the firm was not entitled to sue in the first place because it had contravened subsection 332(5) of the Legal Profession Act 2007 and judgment should not have been granted against her.
Judge Porter QC held that although there had been a proper request for an itemised bill, the firm was not prohibited from suing because the bill specifically identified all the work performed and the names of other persons involved, most of the unparticularised attendances involved relatively short periods of time, and that the client would have been expected to know much about the work performed for her, given that it was a matter which concerned her personal affairs and which she was closely involved in. Significantly, the client had failed to adduce any evidence of the extent of her own knowledge, so there was no evidence that she did not have sufficient knowledge to provide to her advisors. Consequently, the bill was an itemised bill. The appeal was dismissed with costs.
Importance of this case: this case shows that concise descriptions per item can suffice, particularly if they are specific and the client was intimately involved in the matter, and therefore can be presumed to recall enough about the charges.
The client paid the firm in full before issuing an originating summons on 15th March 1996 for the bills to be taxed pursuant to section 67 of the Ordinance.
On 6th May 1996, Master Jones ordered that the bills be taxed. However, the firm was unable to provide breakdowns required by the taxing officer because the files had by then been transferred to other solicitors. On 28th February 1997, Master Cannon gave directions for the Defendant to obtain the files and ordered the firm file and serve upon the client the breakdowns.
In April 1997, the firm provided the necessary breakdowns. The bill numbered 13118 for profit costs of HK$367,475.00 contained 5 pages of particulars. The taxation took place before Master Betts on 19th November 1997. Master Betts gave the costs of the originating summons proceedings to the firm and directed that it file a fresh bill of costs for this purpose within 21 days. That bill was taxed by Master Betts on 4th February 1998 when he disallowed the firm’s costs of preparing the breakdowns in the form of 2-column bills.
Mr. Justice Barnett in Chambers held that Master Betts was not directed to the case of Haigh v Ousey itself, and that the bill was in this case adequate. The decision of Master Betts was reserved and it was directed that, in principle, the firm should be allowed the costs of preparing the formal bills. An order nisi that the firm should have the costs of the review was made.
The client sought taxation of the solicitor’s bills, after a disciplinary committee had found that he had been overcharged. The solicitor resisted the application, contending it was out of time because it had been brought more than 12 months after delivery of the bills, he was prejudiced because he had disposed of the files and the application was time-barred under s 6 of the Limitation Act.
The client submitted that the bills were not proper bills under s 122 of the Legal Profession Act, and therefore he was not out of time. Each bill deprived the matter to which the bill related, followed by the description ““Towards account of our retainer inclusive of disbursements” and the amount charged.
Kan Ting Chiu J held that by applying for taxation, the client has acknowledged he had received proper bills that he was liable to pay. However, the lack of particulars was a factor in favour of requiring taxation.
Citing Keene v Ward (1849) 13 QB 515, Haigh v Ousey (1857) 7 E & B 578 and Ralph Hume Garry (a firm) v Gwillim  1 WLR 510, Kan Ting Chiu J also held that much of the matters referred to in those cases also apply in Singapore, consequently, the reasoning employed in the English decisions is also applicable to Singapore. On that basis, the skeletal bills the solicitor had presented fell short of the standard set in Keene v Ward and expanded on in Ralph Hume Garry (a firm) v Gwillim.
Kan Ting Chiu J, applying the cases of In re Jackson  KB 371 and Forsinard Estates Ltd v Dykes & Ors  1 WLR 232 on the question of whether the bills had been paid, said that “it cannot be said that the plaintiff had paid the bills when the deductions were made without his agreement and consent”.
For these reasons, special circumstances were found to exist, and the bills were ordered to be taxed.
The client sought orders for a bill of costs for taxation in respect of 35 invoices totalling $1,514,089.80 issued by the solicitor in acting for the client in a professional negligence suit against Edmond Pereira Law and to tax the invoices.
Corporation, another firm of solicitors. That suit was dismissed.
The client argued the bills were not bills of costs under s 122 of the Legal Profession Act because they were not itemised. Therefore, the two disqualifying events to an order for taxation in s 122 that the bills were paid or that 12 months had lapsed from the date of the invoices did not apply. The client also argued that even if Invoices 1 to 34 were proper bills of costs, there were special circumstances under s 122 of the LPA that justify the making of an order for taxation, in particular on the lack of itemisation in these Invoices and alleged overcharging by the solicitor.
Tan Siong Thye J referred to the cases of Ralph Hume Garry (a firm) v Gwillim  1 WLR 510 (“Ralph Hume Garry”), cited in H&C S Holdings at  and Ho Cheng Lay v Low Yong Sen  3 SLR(R) 206 (“Ho Cheng Lay”) at – in what constitutes a proper bill of costs. Tan Siong Thye J held that the client had rebutted the presumption that Invoices 1 to 34 are bona fide bills under s 118(3) of the LPA because the bills did not contain any narrative of the work performed and the client did not have any information that would have enabled him to take advice on whether or not to seek taxation as demonstrated by his requests for itemised bills, which were not complied with.
Tan Siong Thye J also found that there were special circumstances that warranted the making of an order for taxation in this case as a result of the lack of itemisation despite repeated requests by the client for details.
The solicitor was ordered to deliver within 14 days bills of costs for taxation covering work done.
Historically, bills issued by solicitors had to contain sufficient information for the client to be able to obtain advice on whether to have the bills taxed. In more recent times, the law has allowed lawyers to issue gross or lump sum bills that are expected to describe the work performed but do not contain any itemisation which would provide a higher level of detail and make it easier for the bills to be assessed. However, those liable to pay the legal costs have a right to request an itemised bill to enable them to judge the fairness of the charges and obtain advice on the prospects of proceeding to cost assessment and reducidng the costs sufficiently to have their costs of the assessment paid, rather than having to pay the lawyer’s costs of the assessment.
The issue of whether a bill provided by a law practice is sufficient is important in a few ways. First, an inadequate bill may affect a law practice’s right to recover its fees. Second, if a proper request for an itemised bill is made after receipt of the gross/lump sum bill, the law practice often may not sue until 30 days after providing an itemised bill. However, if an itemised bill has been provided at first instance, there is no requirement to deliver a further bill. Third, if a gross/lump sum bill is provided, the client may then request or seek an order for the delivery of an itemised bill (before or after proceedings are commenced), so that they may then receive advice about whether to pay the bill, settle the claim for fees or apply for a cost assessment. Fourth, a lump sum bill can in some circumstances be withdrawn, and an itemised bill provided for a higher amount. For these reasons, much can turn on whether a bill is sufficient, as the lengthy case law outlined above demonstrates.
As can be shown, the case law in England, Victoria, NSW and Queensland has been consistent for a very long time that a bill of costs/itemised bill needs to contain sufficient information in order for the client to be able to obtain advice about the desirability of applying for a costs assessment. Hence a bill in a lump sum format, even if it provides a long and detailed narrative of the services performed, will often be held insufficient, as the cases of Malleson Stewart Stawell and Nankivell v. Williams, In Re a taxation of costs and Currie v Robinson (supra) demonstrate. Furthermore, bills in an itemised format with very brief or generalised descriptions for each item listed may also be vulnerable to challenge, as the cases of Henchman v Hannes, McGrath v Roe and Gorczynski v Beilby (supra) show. On the other hand, brief descriptions on a bill in itemised format may suffice if they are sufficiently specific, particularly if the client may be expected to know more than what is stated in the bill itself: see Henchman v Hannes, Re Bailey’s Bill of Costs, Piper Alderman v Smoel and Murdock v Sterling Law (supra). And as the case of Ralph Hume Garry v Gwillim (supra) indicates, in some cases it may not be necessary for a bill to say much at all if the client’s knowledge of the services performed is substantial. The level of detail required in a bill varies from case to case, and can depend on the knowledge, personal involvement and/or sophistication of the client.
The case law for a long time has attempted to strike a fair balance between a client’s right to know what they are asked to pay for and avoiding just claims for unpaid fees being defeated by technical ambushes. Since Keene v Ward (supra), the Courts have held that an exactness of form is not required, and since Cook v Gillard (supra) have not merely considered the contents of the bill itself. Any lack of information or detail contained in a bill can often be remedied by accompanying or other documents, subsequent meetings/communications with the client/third party payer or additional information which is or would presumably be within the client’s own knowledge.
Notably, it is ordinarily the client who bears the onus of proving that a bill is insufficient, because normally they would have some knowledge or familiarity with their own matter, and they are the only person who could provide evidence as to the state or extent of their own knowledge of the work performed for them. As the case of Pott v Clayon Utz (supra) demonstrates, it is not acceptable for a client to merely depose to a concern that they may have been overcharged: the client must descend into particulars, identifying what information they require but do not have in order to obtain advice about their prospects of sufficiently reducing the amount owed if they get the costs assessed. Such steps are required in order to show on the balance of probabilities that the client genuinely requires further information in order to get advice about the fees and charges, and is not simply raising a technical point in order to avoid or delay paying fees that are legitimately owed. The bill need not set out full details of the work performed, so long as overall the client has sufficient information to obtain advice about their likely success in reducing the bill on an assessment.Posted on