Interim Tax Invoices and Final Tax Invoices

If you have costs agreements that pre-date the inception of the LPUL - 1 July 2015, then the operation of Sections 334 and 350 of the Legal Profession Act 2004 (LPA 2004) are the key sections to understand if you have a client that wants to:

a.   have their previous lawyers tax invoices assessed; and

b.   your firm is potentially exposed to a practitioner/client costs assessment.

Section 334 provides as follows:

(1)    A law practice may give a person an interim bill covering part only of the legal services the law practice was retained to provide.

(2)    Legal costs that are the subject of an interim bill may be assessed under Division 11 (Costs Assessment), either at the time of the interim bill or at the time of the final bill, whether or not the interim bill has been paid.

An application can be made out of time under Section 350 (5) of the LPA 2004. This subsection provides as follows:

(5) However, and application that is made out of time…may be dealt with by the costs assessor if the Supreme Court, on application by the costs assessor or the client or the third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the assessment to be dealt with after the 12month period.

In my experience, this means that if the law firm cannot establish that there is any substantial prejudice in those costs being assessed – then the costs assessment can proceed.  Generally, substantial prejudice can only be established if the lawyer who undertook the work cannot be found or is deceased, the files have been destroyed or there is a very long period of delay (say 6 years).

I will deal with the LPUL provisions in one of my next posts.

The LPUL - what does it really change? Part 1

The following is a collection of notes that I have gathered since the inception of the LPUL and relate to Costs Assessments (LPA and LPUL)

• The Legal Profession Uniform Law commenced on 1 July 2015 and includes amendments to costs assessment for future matters.
• The Legal Profession Act 2004 and CURRENT assessment processes CONTINUE to apply to:

1. Practitioner, client and third party costs assessments - where client first instructed the Law Practice BEFORE 1 July 2015 (see Legal Profession Uniform Law (NSW) No 16a 2014 - Schedule 4 Clause 18)
2. Party/Party Costs assessments (quantifying costs pursuant to an order of court or tribunal) - where proceedings to which the costs relate commenced BEFORE 1 July 2015 (see Legal Profession Uniform Law Application Regulation 2015 - Regulation 59)

• Legal Profession Uniform Law - Please note the transitional provisions and in summary, any NEW costs assessment provisions will only apply to:

1.  Uniform costs (previously client and practitioner costs) - where client FIRST INSTRUCTED the law practice on or AFTER 1 July 2015 (see Legal Profession Uniform Law (NSW) No 16a 2014 - Schedule 4 Clause 18)
2.  Ordered Costs (previously party/party costs) - where the proceeding to which the costs relate COMMENCED on or AFTER 1 July 2015 (see Legal Profession Uniform Law Application Regulation 2015 - Reg 59)

• The relevant legislation that commenced on 1 July 2015 is a follows:

1. Legal Profession Uniform Law (Act 16a 2014)
2. Legal Profession Uniform Law Application Act 2014 (Act 16)
3. Legal Profession Uniform Law Application Legislation Amendment Act 2015 (no 7)
4. Legal Profession Uniform Law Application Regulation 2015

• The Costs Assessment Scheme and its processes are not court proceedings in the Supreme Court, nor are Costs Assessors officers of the Supreme Court.
• All Costs Assessment Scheme applications are determined on the papers, and neither the Uniform Civil Procedure Rules 2005,  nor other rules of Court, govern the Scheme's administration.
• The Manager, Costs Assessment exercises the duties, obligations and functions conferred to the position under the Legal Profession Act 2004and the Legal Profession Act 1987.
• Division 11 of Pt 3.2 of the Legal Profession Act 2004 and the Legal Profession Regulation 2005 apply to party/party applications for costs assessments, and applications for costs assessments made by clients or legal practitioners where the instructions were given after 1 October 2005.
• Part 11, Div 6 of the Legal Profession Act 1987 and the Legal Profession Regulation 2002 or the Legal Profession Regulation 1998 apply to applications for costs assessments made by clients or practitioners where the client gave instructions to the legal practitioner before 1 October 2005.
• For more information concerning which legislation applies to an application refer to clause 18 of Schedule 9 of the Legal Profession Act 2004.
• The Costs Assessment Scheme does not have jurisdiction to deal with costs orders made by the Federal Court of Australia (refer to Part 40 of the Federal Court Rules 2011). The Costs Assessment Scheme does not have jurisdiction to deal with Family Court matters where the instructions were given to the legal practice prior to 30 June 2008