Sharpe v Pascoe (Unreported, WASC, Library No 521.1, 1968)

1 DEPUTY REGISTRAR HEWITT: In this matter the cause of action pursued by the plaintiff against the defendant was for negligence as her retained legal practitioners in failing to issue a writ within a limitation period in relation to a cause of action against a dental practitioner. The action was settled by way of a consent order dated 22 September 2010 under the terms of which, the action was discontinued and the defendant was to pay the plaintiff's costs. Pursuant to that order, the plaintiff filed a bill of costs for taxation on 20 May 2011 and that bill was taxed by me on 14 June 2011. At the conclusion of the taxation, I held open my certificate to allow objections to be brought in which the defendant has done by a formal written objection dated and filed 28 June 2011.

2 The objection relates to a single item on the bill, that being the claim for getting up case for trial.

3 Originally, $6,930 was claimed for this item but I reduced it by $2,430 leaving a balance of $4,500. In a nutshell, the objection is based upon the proposition that the item contained a significant allowance for negotiations which were undertaken by the plaintiff's solicitors with the defendant's insurer and the defendant and such negotiations should not form a component of any allowance or getting up case for trial.

4 The objections also raise as a subsidiary issue '... any such allowance must take account of the obligation on the part of the plaintiff to conduct the negotiations both honestly and reasonably and the amount allowed should be reassessed having regard to the inefficient and unreasonable way in which the negotiations were conducted by the plaintiff'. Such allegations are serious indeed and invite me to conclude, as a basis of further reducing my allowance, that the plaintiff's solicitors acted in a dishonest, unprofessional and inefficient way when conducting negotiations with the defendant's professional insurer.

5 I will first deal with the original propositions which are contained within the objections. It is suggested that it is not appropriate to make an allowance for entering into negotiations with a view to settling the action. In my view a solicitor embarking on litigation against a firm of lawyers in respect of a claim for negligence for missing a limitation period should consider and explore the prospect of settlement before plunging into litigation. In order for that process to take place much work which is properly categorised as getting up case for trial needs to be undertaken. The solicitor needs to have a grasp of the relevant facts, and have made assessments as to the strength of the plaintiff's case and the quantum of the plaintiff's damages. Those are processes which are central to the task of preparation for trial. They are likewise critical before any meaningful negotiation can take place. It follows from the comments that I have just made that insofar as my allowance encompassed the task of ascertaining the relevant facts, considering and evaluating the strength of the plaintiff's case, and formulating an opinion as to the quantum of the claim, those should be regarded as getting up the case for trial and the plaintiff should not be denied recovery for those tasks merely because she entered into negotiations trying to achieve a settlement of the action using the information thus collected.

6 The next issue is whether some allowance should be made to recognise the fact that the solicitors attempted to achieve a settlement before instigating proceedings. In my view, a firm of solicitors acting responsibly should put the defendant on notice of the claim and should give the defendant the opportunity to achieve and negotiate a settlement without the need to litigate. In that regard, having considered the process by which negotiation was conducted, I do not consider that the tasks embarked upon by the plaintiff's solicitors attempting to settle this matter went beyond what was required in the circumstances of the case. Most of the work which was required to present sensible submissions for settlement were tasks which were required to be undertaken as a part of the preparation of the case for litigation. The fact that such work was done prior to the issue of proceedings is not a bar to recovery and for that proposition I rely on the case of Sharpe v Pascoe (Unreported, WASC, Library No 521.1, 1968).

7 I now turn to the balance of the matters raised by the submissions. It is suggested that the plaintiff's solicitors failed to appreciate the consequences of failing to pursue what the defendant regards as the balance of the plaintiff's action preserved by the issue of the original writ on her behalf.

8 The plaintiff's claim, as I understand it, arose because of the incorrect use of bridge work by the dentist which caused subsequent problems to the plaintiff. Whilst I do not pretend to have a complete grasp of the case, from what I can see the whole of the cause of action arose through the original work which was undertaken by the dentist such that if that part of the action was statute barred, there was precious little left which would found a claim for negligence. The risks of undertaking that litigation were in my view very considerable and I am unable to see that the plaintiff's solicitors should be criticised for failing to expose their client to that risk. As events transpired, it seems to me that their view was justified and they took the path of least risk for their client to achieve compensation. To deal with some of the specifics in regard to this aspect of the objections, the defendant notes that the plaintiff apparently denied giving a wrong date to the defendant in the negotiations conducted with Law Mutual. I struggle a little to understand the point because as I understand it, during the course of the taxation counsel representing the defendant conceded that at some stage at least the plaintiff had given the correct date of treatment, or at least the defendant had ascertained the correct date of treatment, and due to the failure to diarise that date, the limitation period was allowed to elapse. As to the allegation that the plaintiff's solicitors acted in breach of the appropriate professional standard, I am unable to see anything on the materials which are produced to me or of which I was informed during the course of the taxation which would justify me reaching any such conclusion.

9 As to the final aspect of the objection from which it is said that the proper allowance for the time taken by the plaintiff's solicitors for pursuing and drafting the relevant correspondence is approximately five hours, I would not quibble with such a suggestion. That, however, ignores the fact that the correspondence has to be based on appreciation of the facts of the case and an evaluation of the strength of the case and a consideration of the appropriate quantum of damages. When one adds in that element of the equation, in my view the allowance which I have made is appropriate. As a consequence, I am not persuaded that I should review the allowance which was made for getting up case for trial and I propose to sign the allocator in the taxed sum of $6,893.94 upon the publication of these reasons.