ALYSON ASHE & ASSOCIATES

1 1. ALYSON ASHE & ASSOCIATES . LEGAL COSTS CONSULTANTS. For JANEDA PTY LTD ABN 86 466 143 245. P O Box 737. Crows Nest, NSW 1585. Email: Phone: 1300 738 262. ALYSON 's mobile 0414 362 477. Presentation Paper on LEGAL COSTS. for the City of Sydney Law Society GETTING THE most OUT OF THE COSTS ASSESSMENT. PROCESS . Presentation 2012 (and updated in 2015). by ALYSON ASHE. Solicitor/Legal Costs Consultant Former Registrar and Taxing Officer of the Supreme Court of NSW. ALYSON ASHE Getting the most out of Costs Assessment 2012 2015 Page 1. 2. ALYSON ASHE Getting the most out of Costs Assessment 2012 2015 Page 2. 3. COPYRIGHT. 2012 and 2015 ALYSON Ashe, ALYSON Ashe & ASSOCIATES A licence to reproduce or disseminate part of this material was given to the City of Sydney Law Society upon presentation for their members in 2012. It has been updated in 2015. These materials are copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission.

2 ALYSON ASHE Getting the most out of Costs Assessment 2012 2015 Page 3. 4. ALYSON ASHE & ASSOCIATES . LEGAL COSTS CONSULTANTS. For JANEDA PTY LTD ABN 86 466 143 245. P O Box 737. Crows Nest, NSW 1585. Email: Phone: 1300 738 262. ALYSON 's mobile: 0414 362 477. About the Presenter ALYSON Ashe, Solicitor, is the principal of ALYSON Ashe & ASSOCIATES , Legal Costs Consultants. Before that she worked in several law firms and then in the NSW Attorney-General's department as a Registrar and Taxing Officer of the Supreme Court of New South Wales carrying out quasi-judicial work and court administration, variously as Registrar in Equity and Registrar Court of Appeal. Since 1989 ALYSON has specialised in the area of legal costs. Her extensive experience extends to all aspects of the NSW Costs Assessment and costs recovery in the Federal Court of Australia and in the High Court. She is a senior practitioner and has personally been involved in the resolution of costs disputes in New South Wales, Victoria, Queensland, the ACT (and Norfolk Island) and in Western Australia.

3 ALYSON Ashe is an independent expert in costs and has appeared or provided evidence in gross sum applications and security for costs applications in important large litigation in the Supreme Court of NSW. and the Federal Court: for details see her website She has been appointed as a Court Referee and as a Court Expert and as a Taxing Officer for AFSA. (Australian Financial Security Authority formerly the Insolvency and Trustee Service Australia). Her clients include various government departments both State and Federal. Her authorship includes Nevill and Ashe: Equity Proceedings with Precedents Butterworths 1981; and Editor: Lexis Nexis Looseleaf Costs Service Legal Costs NSW . She also regularly presents at legal conferences and at law firms and for government lawyers. She is a member of the current Costs Users Group convened by the Supreme Court of NSW and has been a member of the Law Society of New South Wales Costs Committee since 2012. ALYSON ASHE Getting the most out of Costs Assessment 2012 2015 Page 4.

4 5. GETTING THE most OUT OF THE COSTS ASSESSMENT PROCESS . Contents Costs Assessment .. 8. GENERAL 9. The Appointment of a Costs Assessor by the Manager, Costs Assessment .. 9. Dealing with the Costs Assessor .. 10. Costs Assessor's Powers of Amendment - Get it Right in the First Place .. 11. If there is an inadvertent error in a certificate it may be amended by the Costs Assessor: s 371. The Correcting of an Error in a Costs Determination .. 11. SOLICITOR/CLIENT ASSESSMENT .. 11. Using Costs Assessment to Pursue Unpaid 11. Base your Application on a GOOD BILL .. 14. Serving the bill(s) of costs upon which you rely .. 14. The Practitioner/Client Application .. 15. Role of the Manager, Costs Assessment in a Practitioner/Client Application .. 16. Other things you can do .. 17. The Importance of Objections .. 17. Responding to the 17. Answering the Costs Assessor's Requisitions .. 17. The Disaffected Client - Client / Practitioner Assessment .. 18. There are two ways you may become involved in a Client/Practitioner Costs Assessment.

5 18. Assisting a new client to take on his former solicitors .. 18. The Time Limits you need to know about .. 18. Request for an itemised bill (challenging or being challenged) .. 18. What if you use alternative billing .. 19. Case Law re THE ITEMISED BILL .. 20. Time limits for client lodging for assessment .. 22. The vexed issue of interim accounts and the 12 month period .. 24. ALYSON ASHE Getting the most out of Costs Assessment 2012 2015 Page 5. 6. Dealing effectively with an Assessment against you .. 25. The Process of a Client/Practitioner Assessment .. 26. Effectively Responding to a Client /Practitioner Assessment .. 26. Settlement negotiations .. 27. PARTY PARTY .. 27. Get a Good Costs Order .. 27. Costs of an Amendment .. 27. Apportionment .. 29. Apportionment several matters heard together .. 29. Apportionment/Cross 29. Get a proportionate or percentage costs order .. 29. Indemnity Costs - .. 32. Achieving an Indemnity Costs Order .. 32. Get some helpful comment from the Bench.

6 32. Preparing the Application .. 32. What to do before making an Application for Party Party Assessment .. 33. Service of the Application for Assessment .. 33. Filing the Application .. 34. Allocation of a Costs 34. Settlement negotiations .. 34. Can a paying party challenge a claim by raising deficiencies in complying with the Legal Profession Act between the successful party and its solicitor? .. 35. Displacing some unfortunate misapprehensions amongst Costs Assessors .. 35. Research .. 35. Internal 36. Travel 36. Answering Costs Assessor's Requisitions .. 37. Costs Respondents' Notice of Objections .. 37. An important task when acting for a Costs Respondent is to check the claims in the bill against your own file and thereby pick up erroneous claims eg for instructing in court when you have a file note that the other side's solicitor was absent from Court.. 37. ALYSON ASHE Getting the most out of Costs Assessment 2012 2015 Page 6. 7. For costs effectiveness concentrate on the big ticket items.

7 Also crystallize General Objections and list the items affected rather than provide Specific Objections seriatim .. 37. Counsel .. 37. Cancellation fees .. 37. Review of a Costs Assessment .. 37. Appeal from a Costs Assessment .. 39. ALYSON ASHE Getting the most out of Costs Assessment 2012 2015 Page 7. 8. Introduction to GETTING. THE most OUT OF THE COSTS ASSESSMENT. PROCESS under the Legal Profession Act 2004 [paper edited in 2015]. This Amended paper does not deal with the effect of the Legal Profession Uniform Law 2014. Always be conscious of costs outcomes throughout the whole process of providing legal services: particularly during litigation. Costs Assessment The Costs Assessment Scheme NSW has been functioning relatively successfully since 1995. It is cheaper than the alternatives for quantifying costs of gross sum application to the court or appointing a referee- however those other methods have their uses (eg when the costs are very high or are incurred in several jurisdictions).

8 The main criticism of the system is the perceived lack of uniformity of approach between the 60 or so costs assessors and the occasional maverick decisions. The lack of published decisions also adds to those uncertainties. There is no complete list of Costs Assessors published but in my experience it appears that there has always been a lack of representation by top-tier firms and CBD lawyers amongst the Costs Assessors. However, experienced costs consultants now have an accumulated body of knowledge of the system and the Costs Assessors derived from experience - and there are things that can be done to get the most out of the system . The Supreme Court website re Costs Assessment is helpful as to process. The mere fact that I have been asked to speak on the topic of Getting the most Out of the Costs Assessment System indicates that there is a perception of a need to know more about how things work which demonstrates how different the system is from any court process.

9 Purpose of the Costs Assessment System to speedily and cheaply quantify reasonable costs in the circumstances of . (a) party party (ordinary basis) costs pursuant to an order;. (b) practitioner/client and client practitioner disputes as to costs. I deal with both scenarios. They are equally important because effective party party recovery usually promotes a good client relationship. And achieving a good recovery relies upon good file management and record keeping which also forms the basis of success in the practitioner client forum. While these comments appear to be most relevant to litigation lawyers, it is my experience that transactional lawyers need to have regard to the same basic principles and also usually come to need ALYSON ASHE Getting the most out of Costs Assessment 2012 2015 Page 8. 9. recourse to the system at some stage in their professional life or be forced into it by a client who seeks to avoid paying for services rendered (whether with good grounds or not).

10 GENERAL COMMENTS. Always be conscious of costs outcomes throughout the whole process: particularly during litigation. I do not intend to dwell in depth on the important but elsewhere well documented aspects of - MANAGING THE CLIENT ENGAGEMENT. Costs Agreement the work . Hourly rates Disclosure and updating the client with business acumen and the sophisticated client (s 312 Legal Professions Act 2004 (LPAct) exemptions to disclosure and also s 395A re sophisticated clients contracting out). ASSEMBLING A COST EFFECTIVE TEAM. KEEPING A GOOD FILE (including a GOOD ELECTRONIC FILE). These factors all contribute significantly to successful outcomes on Assessment and will be touched on from time to time during my talk. I will focus on being careful about defining outcomes during litigation . MANAGE LITIGATION from beginning to end with costs recovery in mind and particularly- Thoughtful litigators in problem areas eg Family Provisions Act Matters will consider using ADR protocols pre-litigation Get an effective costs order The Appointment of a Costs Assessor by the Manager, Costs Assessment The Manager, Costs Assessment Senior Deputy Registrar Jennifer Hedge is readily contactable: The Costs Assessors are allocated by the Manager, Costs Assessment having regard to- (a) the availability of costs assessors, (b) the nature of the matter, ALYSON ASHE Getting the most out of Costs Assessment 2012 2015 Page 9.