RYAN v WHITTEN [1999] NSWSC 865 | Case summary

12881/1998 YVETTE MICHELLE RYAN (nee Morgan) v RAYMOND LAURENCE WHITTEN JUDGMENT 1 The defendant is a solicitor. He was instructed to act on behalf of the plaintiff in her professional negligence action against the Liverpool Hospital. Previously, she had been represented by other solicitors. A Costs Agreement was made on 17 January 1995. 2 An offer to settle the action was made. On 19 May 1997, there was a conference in which the offer was discussed. Both the plaintiff and her husband attended the conference. Instructions were given to accept the offer. A Memorandum of Costs and Disbursements (for the period 10 November 1994 to 14 May 1997) in the sum of $182,283.55 was given to the plaintiff. One of the items appearing in the memorandum was an estimate to complete the matter in the sum of $12,500. 3 The compromise was implemented and the net moneys payable pursuant to the settlement ($804,494.40) was received. These moneys were paid into the defendant's trust account. 4 In July 1997, the defendant paid certain disbursements from the trust moneys. He gave the plaintiff a Memorandum of Costs and Disbursements dated 11 July 1997 (for the period up to 30 June 1997) in the sum of $186,339.73. The plaintiff signed an authority which she returned to the defendant. She was paid a sum of $618,154.67 from the trust moneys. The sum of $96,679.72 was also paid out of the trust moneys for the defendant's professional costs. 5 Subsequently, certain small sums were paid in respect of professional costs and disbursements from moneys retained in trust. 6 A costs consultant was instructed to prepare a Party/Party Bill of Costs. There was some delay in the preparation of that bill. It appears that at least part of the delay was due to difficulty had in obtaining files from the other solicitors who had previously acted for the plaintiff in respect of her action. A bill was ultimately prepared. It was in the order of $170,000. It was submitted to the defendant in the professional negligence proceedings. An offer was made to pay costs in the sum of $110,000. The offer was rejected. An application was made to this Court for assessment of the bill. 7 On 16 June 1998, the plaintiff terminated the defendant's retainer. She engaged Mr Cassin as her solicitor. He sought advice from another costs consultant concerning the party/party costs. The assessment proceedings were settled on the basis that costs in the sum of $120,000 would be accepted and the assessment costs would be split between the parties. 8 The question of an assessment of the defendant's solicitor and client costs was raised in October 1998. The defendant objected to any assessment on the basis that the plaintiff was now out of time to make application to the court. Proceedings were brought in this Court by Summons filed on 25 November 1998. This process brings the present dispute before the court. The assessment stands in abeyance pending the determination of that dispute. 9 The dispute came on for hearing on 12 August 1999. The plaintiff seeks a declaration and order (see paragraphs 1 and 2 of the Summons). A number of affidavits and certain exhibits have been placed before the court. There are affidavits from both the plaintiff and her husband. There is an affidavit from Mr Cassin. There is an affidavit from a costs consultant (Paula Grace Homersham). The defendant has sworn an affidavit. His affidavit is supported by an affidavit sworn by a former employee (Mr Higginbottom). 10 Save for Mr Cassin, all the deponents have been cross-examined. There is conflict between what has been said on one hand by the plaintiff and her husband and on the other hand by the defendant and Mr Higginbottom. Largely, the conflict relates to what happened at the conference held on 19 May 1997. One particular matter in dispute was whether or not the defendant had given to the plaintiff a computer print-out relating to his costs up to that time. 11 I have closely observed the demeanour of the witnesses during the giving of evidence. In assessing credibility I have had regard both to evidence and demeanour. 12 It seems to me that this case can be dealt with without determining questions of credibility. However, for the assistance of the parties, I will express my views on that matter. Where there is conflict, I prefer the evidence given by the defendant and Mr Higginbottom to that given by the plaintiff and her husband. In particular I prefer the evidence of the defendant and Mr Higginbottom on the issue of whether or not a computer printer-out was given to the plaintiff. 13 The Legal Profession Act 1987 (the Act) together with the Legal Profession Regulation 1994 (the Regulation) saw the replacement of the old taxation system by a regime of assessment. A new scheme was enacted for the dealing with disputes as to costs. One aspect of the scheme entitled a client to apply for an assessment of costs, even if payment had been made in respect of those costs, so long as the application was brought within the prescribed time limit. 14 For present purposes the relevant provisions of the new scheme are s 199 and reg 25. 15 Section 199 is in the following terms:- "(1) A client who is given a bill of costs may apply to the proper officer of the Supreme Court for an assessment of the whole of, or any part of, those costs. (2) An application relating to a bill of costs may be made even if the costs have been wholly or partly paid. If the costs have been wholly or partly paid, the application is to be made within the period prescribed by the regulations for the purposes of this subsection. (3) If any costs have been paid without a bill of costs, the client may nevertheless apply for an assessment. For that purpose the request for payment by the barrister or solicitor is taken to be the bill of costs. (4) In this section, 'client' includes any person who is a party to a costs agreement relating to legal services for which the bill of costs is given, other than the barrister or solicitor who gave the bill or who provided the services." 16 Regulation 25 is in the following terms:- "Limitation period for applications by clients for cost assessment where bill paid or part paid

For the purposes of section 199 (2) of the Act, the prescribed period for making an application for an assessment of a bill of costs is the period of 12 months after the bill was given to the client." 17 Section 199 has been looked at by the court in a number of cases. The cases have seen the expression of some conflicting views. The plaintiff places reliance on Selosse v Whitten (Graham AJ, unreported 26 August 1997). This is one of the decisions (to the extent that it may be seen as laying down any relevant matter of principle) which stands in conflict with other authority. 18 The question of the construction of s 199 arose for consideration in Hook v Simpsons Solicitors [1999] NSWSC 667. In that case, I made the following observations:- "Section 199 prescribes the circumstances in which an application for assessment of costs by a client may be made. Subsection (1) enables a client to apply to the Court for an assessment of costs where the client has been given a bill of costs. Subsection (2) enables an 'application relating to a bill of costs' to be made even if the costs have been wholly or partly paid, but the application has to be made within the prescribed period (a period of 12 months after the bill was given). In cases where there has been payment without a bill of costs, the section provides that the client may nevertheless apply for an assessment. In those circumstances, the request for payment is taken to be the bill of costs (subsection 3). The intention of the legislature was to impose a prescribed period for the making of an application in those cases where payment has been made. If the payment has been made prior to the giving of a bill the prescribed period runs from any request for payment." 19 In this case, whilst there is dispute between the parties as to whether or not the defendant had given a Bill of Costs at the relevant time, it seems to me that this is a question that does not need to be resolved. 20 Despite the dispute as to various matters, certain matters of fact are not in dispute. There is no dispute that the defendant has made requests for payment of costs. There are requests that had been made at least by July 1997. There is no dispute that the defendant was authorised by the plaintiff to apply part of the trust moneys towards the payment of those costs. There is no dispute that payment has been made in respect of those costs. In these circumstances, the statutory scheme makes it abundantly clear that the time limit for making application for an assessment of those costs had expired by the time of the filing of the Summons on 25 November 1998 (whether or not it can be so characterised, the parties have proceeded on the assumption that the Summons makes an application for assessment). Accordingly, the court does not have jurisdiction to entertain the application for their assessment. 21 There is a further problem that confronts the plaintiff. It arises by reason of the provisions of s 208C. This section provides that a costs assessor is to decline to assess a Bill of Costs if the requirements of subsection (1) are satisfied. Subsection (3) provides that the section does not apply to any provisional costs agreement that the costs assessor determines to be unjust under s 208D. 22 In this case, the plaintiff contends that the Costs Agreement was unjust. For present purposes, she relies on the evidence of the costs consultant. Unless she was successful on that question, any costs assessor appointed by the court would be obliged to decline to assess the costs. In the light of what has been earlier said, it is not necessary to further pursue this question. In any event, it is a decision that is required to be made by the appointed costs assessor. 23 The plaintiff also contends that the court has an inherent power to order a solicitor to deliver an assessable Bill of Costs. Questions relating to this matter were not fully argued before me. As I have said, conflicting views have been expressed in relation to the matter of the exercise of inherent jurisdiction. The balance of authority does not favour the view that there is relevant inherent jurisdiction. In the light of the new statutory scheme with its imposition of time limitations, I am not satisfied that the court does have such an inherent power to order an assessment out of time. However, if a different view were to be taken of the matter, I do not consider that the evidence discloses a state of affairs in which the court would be disposed to exercise such a power in favour of the plaintiff. 24 I refuse the relief sought in paragraphs 1 and 2 of the Summons. The plaintiff is to pay the costs of the Summons to date. The exhibits may be returned. **********

RYAN v WHITTEN

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