June 12th, 2020
Carter Capner Law v Clift & Ors  QCA 125
The Court of Appeal has recently handed down its decision in Carter Capner Law v Clift & Ors  QCA 125, where Justices Fraser, Philippides and Crow upheld the primary judge’s decision that the client agreement was void, but overturned orders that Carter Capner Law (“CCL”) be required to deliver itemised bills of costs to five former clients.
CCL’s legal fees for five former clients were governed by tripartite deeds with the new firm following termination of CCL’s retainer. The former clients sought written reports of legal costs identifying legal costs to be claimed pursuant to s317 of the Legal Profession Act 2007 (Qld). The firm provided estimates of costs as well as an offer in response but contended that there was no obligation to provide a written report to a former client pursuant to s317 and that its response was satisfactory.
In the primary proceedings, Clift & Ors v Carter Capner Law  QSC 78, Justice Bond ordered that the firm provide to each of the former clients itemised bills in assessable form, in the event of a successful outcome. Although Justice Bond concluded that s317(1) should not encompass requests from former clients, he decided that there was good reason to exercise the inherent jurisdiction of the Court in relation to the control and discipline of legal practitioners.
The Court of Appeal overturned the Supreme Court’s ruling and held that “it would be inappropriate to exercise the discretionary power to order CCL to deliver itemised bills of costs to the respondent”. Due to the no-win no-fee nature of the client agreement, CCL was not entitled to recover any professional fees until a successful outcome, and there had not yet been a result.
The Court of Appeal found there was no evidence that an itemised bill was needed by the respondents for continuing their claims, and that CCL’s response was not insufficient. Mr Lee, the respondents’ lawyer at CCL, continued to act, and the Court found no evidence that he was not in as good a position as CCL to estimate the costs to be allowed on assessment. The Court of Appeal noted the inconvenience and expense that would borne by CCL in preparing an itemised bill, particularly where the costs agreement was held by Justice Bond to be invalid.
Validity of the costs agreement
In the primary proceedings, a proviso in CCL’s costs agreement was held to contain an uplift fee.
The Court of Appeal affirmed the primary judge’s decision that the costs agreement provided for the payment of an uplift fee and, confirming the costs agreements’ non-compliance with s324, held that the costs agreement was therefore invalid.