COSTS PROPORTIONALITY IN COURTS FOR LITIGANTS

The Civil Procedure Act’s overarching obligation to keep costs proportionate April 20th, 2017 · Comments (0) The Civil Procedure Act 2010 applies to proceedings in the Magistrates’ Court, County Court, and Supreme Court but not federal courts or VCAT. Its overarching purpose is to ‘facilitate the just, efficient, timely and costs effective resolution of the real issues in dispute’: s. 7. Courts are required to interpret their inherent, rule-based, and statutory powers so as to give effect to the overarching purpose: s. 8. Every order or direction of a court must further the overarching purpose by having regard to factors which include the degree of compliance with the overarching obligations: s. 9, esp. sub-s. (2)(c). Further, a court may take any contravention of an overarching obligation into account when exercising ‘any power’ expressly including the costs power: s. 28. Individual lawyers within law practices, law practices themselves, litigants, insurers, funders, etc to whom the overarching obligations apply: ‘must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute’: s. 24. This costs proportionality overarching obligation prevails over any other legal obligation: s. 12, including lawyers’ duty to act in accordance with their instructions: s. 13. Lawyers must not cause their client to contravene an overarching obligation: s. 14. Let me provide an example of the operation of the principle in action. A family lawyer sued his poor African migrant client for fees, having greatly exceeded his estimate. The suit for fees was stayed because the costs disclosure defaults meant that it had been illegally commenced. The family lawyer sought taxation of his own fees in the Costs Court. A costs lawyer acted for the African migrant in the taxation, more or less pro bono, agreeing to accept only scale costs and only to the extent the client was entitled to them from the family lawyer under an order or compromise. The disputed fees were small in the scheme of things, but significant in the context of the migrant’s financial situation. The family lawyer’s bill was slashed in the taxation. The African migrant claimed, on scale, costs of the bitterly contested, labyrinthine and procedurally complex taxation of more than $100,000, several times the value of the reduction in the bill which was much less than $100,000 to start with. A Costs Registrar fixed the African migrant’s costs in the sum of only about $30,000 by virtue of a s. 24 breach, giving a few lines of reasoning. That was less than an offer of compromise in relation to the costs of the taxation by the family lawyer which had been confidently rejected by the client on the costs consultant’s advice, with disastrous consequences for the costs lawyer, leaving the client with a very modest costs entitlement. The leading authority on proportionality is Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 the facts and outcome of which are useful if you are resisting an allegation of disproportionality despite the stern comments made along the way. Though the appeal book was declared over the top, the Court found no breach in the applicants briefing seven counsel, three of them silks, even though all the applicants’ submissions were much the same, the hearing was an interlocutory application for security for costs, and one applicant briefed two senior counsel and one junior counsel. The Court found the proceeding was likely to be ‘immensely complex and expensive’. The decision makes clear that sanctions under the Act have a disciplinary function when applied to lawyers rather than a purely compensatory purpose: Yara at [5], [20] – [24]. See also the paper of Judicial Registrars Sharon Burchill and My Anh Tran given to the Leo Cussen Institute Litigation Conference 2016 which summarises Babcock & Brown DIF III Global Co-investment Fund LP v Babcock & Brown International Pty Ltd [2015] VSC 612; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303, Gibb v Gibb [2015] VSC 35; Rigby v Tiernan [2016] VSC 352 esp at [129] et seq (retention of senior counsel with junior disproportionate) and Re Manlio (No 2) [2016] VSC 130 esp at [18]. But if you only read one case, read Actrol Parts Pty Ltd v Coppi (No 3) [2015] VSC 758 where Justice Bell deprived the successful former employer plaintiff of judgment and nominal damages expressly on the basis that its costs of obtaining a relatively Pyrrhic victory against a much weaker former employee defendant were disproportionate, and dismissed the successful plaintiff’s proceedings instead. By virtue of the dismissal, his Honour found, the defendant was the ‘successful party’ for the purposes of the presumption that costs follow the event, and ordered it to pay the defendant’s costs ([103]) on an indemnity basis from the commencement of the proceedings in order to ‘sanction’ the plaintiff’s conduct ([112]). Justice Bell added at [118], for good measure: ‘Let it be understood that the court is prepared to exercise its enhanced and new powers in relation to civil proceedings in quite fundamental ways when this is called for, especially where the overarching obligation to ensure costs are reasonable and proportionate is contravened.’ See also: Third party payer taxations where client bankrupt: WASCA Once the time for taxation runs out, the solicitor can sue on the bill as a simple debt VCAT’s jurisdiction over post-proceedings Family Law fees Man sues lawyer for declaration in reverse suit for fees Solicitor’s creditors statutory demand set aside because of alleged non-compliance with costs disclosure obligations prior to settlement of client’s case Share this: EmailPrintFacebookTwitter Related Section 18(d) of the Civil Procedure Act 2010 (Vic) 13 March, 2014 In "Alleging fraud & misconduct" What can barristers charge for? 21 April, 2017 In "Costs agreements" Advocates' immunity abolished in Victoria and NSW 14 March, 2016 In "Advocates' Immunity" Tags: Civil Procedure Act 2010 (Vic) · civil-disciplinary interplay · Discipline · Ethics · litigation ethics · Party party costs · pro bono · Professional fees and disbursements · Proportionality · Wasted costs Profile Sign in with Twitter Sign in with Facebook or Comment Name Email Not published Website * Copy This Password * * Type Or Paste Password Here * Notify me of follow-up comments by email. 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TRIAL ON PAPERS OR TRIAL BY PAPERS - A NEW TREND OF GETTING THE BEST OUT OF THE LEGAL SYSTEM

http://www.hoeyfarina.com/judge-advocates-trial-papers-avoid-mental-gymnastics JUDGE ADVOCATES 'TRIAL ON PAPERS' TO AVOID 'MENTAL GYMNASTICS' January 22, 2004 Steven P. Garmisa Hoey & Farina Attorney When a senior case law editor for Lexis-Nexis moves to town and needs an attorney, you know she's got the tools for finding the go-to lawyer for her particular problem. In the case of a Lexis editor who filed a claim for long-term disability benefits after moving from Michigan to Evanston, I was curious to see who she picked. Maybe Wendy Crespo checked the Law Journals database to see who in Illinois wrote the most significant articles on disability claims under the Employee Retirement Income Security Act. Whatever she did, Crespo wound up hiring Chicago lawyer Mark D. DeBofsky. Among numerous other publications, DeBofsky has written for TRIAL ("So You're Stuck With ERISA ... Now What?," October 2002); the Chicago Bar Record ("The Nuts & Bolts ff Lawyers' Disability Insurance," May 2000); and the Illinois Bar Journal ("Bringing an ERISA Claim: A Step-by-Step Guide," 88 Ill.B.J. 20). For the record, I met DeBofsky about 20 years ago when I represented a now- defunct auto insurer in a federal case. Mark represented plaintiffs who filed a civil racketeering class-action complaint against my client based on an alleged pattern of mail fraud. Years later, when I represented a commodities trader with a disability claim, I called Mark to pick his brain. When I heard him rattling off the relevant rulings and developments in litigation against that insurance company across the country, I brought Mark in as co-counsel. (Note to obnoxious young litigators: today's adversary, tomorrow's co-counsel.) Ruling on cross-motions for summary judgment, U.S. Magistrate Judge Morton Denlow decided that the insurance company's denial of Crespo's disability claim was arbitrary and capricious because the company failed to give her a "full and fair review." The focus of this article (other than complimenting my old adversary DeBofsky) is Denlow's explanation for why attorneys should consider using the procedure of "trial on the papers." Crespo v. Unum Life Insurance Company of America, 2003 WL 22967245 (N.D. Ill, Dec. 18). As an employee of Lexis-Nexis, Crespo had long-term disability coverage under an insurance program issued and administered by Unum. Saying she was disabled by fibromyalgia, Crespo filed a claim for long-term disability benefits. Unum denied the claim and Crespo appealed, presenting additional evidence. When Unum denied the appeal, Crespo, represented by DeBofsky, filed a federal suit in the Northern District of Illinois. Preparing and responding to motions for summary judgment can be a time- consuming, expensive proposition (particularly with the elaborate set of local rules in the Northern District of Illinois). But filing cross-motions for summary judgment doesn't guarantee that litigants will avoid the expense of further litigation, even in a case that will ultimately be resolved on a paper record. Pointing to a series of cases from other courts, and one of his own articles, "Trial on the Papers: An Alternative to Cross-Motions for Summary Judgment," 46 The Federal Lawyer 30 (1999), Denlow urged that "in the future, parties consider proceeding by means of a trial on the papers." As Denlow explained (with various omissions not indicated in the quoted text): "Courts on all levels, including the U.S. Supreme Court ... customarily decide ERISA benefit cases through the summary judgment process. However, the summary judgment process has the potential for a non-decision, extra litigation, additional costs and unnecessary delay. These potential problems are eliminated by proceeding by means of a trial on the papers. "By filing cross-motions for summary judgment, parties do not waive their right to a trial on the merits. Each party is merely asking a court to grant it judgment without a trial, but if the judge disagrees, each wants a trial. Each movant individually must fulfill the requirements necessary to obtain summary judgment under Federal Rule of Civil Procedure 56. "A court is not required to grant summary judgment as a matter of law for either side when faced with cross-motions for summary judgment. Rather, the court is to evaluate each motion on its merits, resolving factual uncertainties and drawing all reasonable inferences against the movant. "A trial on the papers process offers certain advantages over cross-motions for summary judgment. It is certain to result in a decision for one party rather than present the risk of a non-decision if the cross-motions for summary judgment are both denied. "Given the crowded court dockets and the expense involved in briefing cross- motions for summary judgment, the denial of both motions results in further delay and expenses that is avoided by a trial on the papers. "If the decision resulting from a trial on the papers is reversed on appeal, it is unnecessary to remand for a new trial, which may occur on a reversal from cross-motions for summary judgment. "Additionally, where an ERISA plan contains language that confers discretion to the plan administrator, a court applies the 'arbitrary and capricious' standard of review and will disturb the benefit determination only if it is 'downright unreasonable.' If this ERISA issue is reviewed in the context of summary judgment, a court must determine the reasonableness of the plan administrator while drawing all inferences in favor of the claimant. Such an exercise during cross-motions for summary judgment represent wasted effort by the parties and the court that can be avoided easily by proceeding by means of a trial on the papers. "Even though under both processes judicial review is limited to the evidence that was submitted in support of the application for benefits, if a question of fact arises a court must deny the cross-motions for summary judgment and set the case for trial. Reviewing the identical record pursuant to a Rule 52(a) trial on the papers, the same court can decide the case and resolve any fact questions. "Clearly, it is more efficient to reach the same determination on the same record by skipping cross-motions for summary judgment and proceeding directly to a trial on the papers, where all possible issues can be resolved by the court. "Furthermore, a defendant's summary judgment motion is difficult to analyze in a situation where the plan administrator is given discretion. On the one hand, the court must look at the evidence in the light most favorable to the plaintiff in analyzing whether the plan administrator abused its discretion. On the other hand, the court must give deference to the administrator's decision. This constitutes complex mental gymnastics that are not necessary in a trial on the papers situation. Under a trial on the papers, the plaintiff must meet its burden of proof that the plan administrator's decision was arbitrary and capricious. "For all of these reasons, the court strongly recommends that, in the future, parties consider a trial on the papers." On the merits, though, even with cross-motions for summary judgment, Crespo proved Unum failed to give her appeal the "full and fair review" required by the ERISA. Ruling that Unum's decision to deny her claim for long-term disability benefits was arbitrary and capricious -- for eight separate reasons -- Crespo's motion for summary judgment was granted, and Unum's motion was denied.

‘Today’s lawyers should have a broader vision’: SC Judge Jagdish Singh Khehar

See the Link: http://www.nyoooz.com/chandigarh/622334/todays-lawyers-should-have-a-broader-vision-sc-judge-jagdish-singh-khehar Summary: He urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. Justice Khelhar urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. “I strongly feel that mediocre students become more successful in life.”“I owe everything to the teachers and faculty of the law department. This was what Supreme Court Judge, Justice Jagdish Singh Khehar, said while dwelling on the issue of corruption at the Panjab University’s convocation function on Saturday in Chandigarh. Ravi Kanojia Justice Khelhar urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. Justice Khelhar urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. Ravi Kanojia Justice Khelhar urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. Ravi Kanojia India as a country is fighting a long-drawn battle against corruption but somehow it is failing to overpower it because it is a deep rooted menace. The only hope is that the future generations, which if guided properly about the harm it is causing, will be able to combat this disease. This was what Supreme Court Judge, Justice Jagdish Singh Khehar, said while dwelling on the issue of corruption at the Panjab University’s convocation function on Saturday in Chandigarh. He urged the students of the law department to be incorruptible and never compromise the issue of honesty and integrity. “Two things — being incorruptible and integrity — will give you a sense of honour and fulfillment in life,” he said. Justice Khehar, who is also an alumnus of the Panjab Univeristy, recalling his student days, said that he could say from his experience that bookworms rarely make it to the top in life. “I strongly feel that mediocre students become more successful in life.” “I owe everything to the teachers and faculty of the law department. Source: http://indianexpress.com/article/cities/todays-lawyers-should-have-a-broader-vision-sc-judge-jagdish-singh-khehar-3060751/

LAWYERS CAN CONTRACT OUT OF TAXATION?

When can lawyers contract out of taxation (part 3) December 10th, 2015 · Comments (0) http://lawyerslawyer.net/2015/12/10/when-can-lawyers-contract-out-of-taxation-part-3/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+lawyerslawyer+%28The+Australian+Professional+Liability+Blog%29 This is part 3 of a post about the circumstances in which lawyers can avoid having their fees taxed. Parts 1 and 2 are here and here. In GLS v Goodman Group Pty Ltd [2015] VSC 627, Macaulay J held that an accord and satisfaction which was found to have been made in relation to fees previously rendered for work already done was not a ‘costs agreement’ in the sense of that expression in the now-repealed but still operative Legal Profession Act 2004, so that the prohibitions on contracting out of taxation in costs agreements, and the writing requirements for costs agreements were not applicable. His Honour distinguished Amirbeaggi and Jaha, discussed in the two previous posts, explaining that he was following Beba. Justice Macaulay ruled: ’43 GLS [argued] that the agreement to pay the discounted sum for the withdrawal of caveat and legal files in October 2013 constituted a ‘costs agreement’, and was thereby void due s 3.4.31 of the Act. Relevantly, s 3.4.31 provides that a costs agreement that contravenes, or was entered in contravention of, any provision of Division 5 of Part 3.4 the Act is void. 44 Division 5 contained s 3.4.26 which concerned the making of costs agreements. Section 3.4.26(5) provided — (5) Except as provided by s 3.4.48A, a costs agreement cannot provide that the legal costs to which it relates are not subject to costs review under Division 7. 45 Section 3.4.48A provided — 3.4.48A Contracting out of Division by sophisticated clients A sophisticated client of a law practice, or an associated third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned, may contract out of this Division. 46 Definitions of ‘sophisticated clients’, ‘third party payer’ and ‘associated third party payer’ were set out in ss 3.4.2 and 3.4.2A of the Act. GLS was none of those. Essentially, GLS argued that, because she did not fall within the category of a client who could contract out of Division 7, neither did she fall within the exception in s 3.4.26(5). Consequently, no costs agreement between her and Goodman could provide that the legal costs to which that agreement related were not subject to costs review. Implicit in her arguments was the proposition that the alleged accord and satisfaction amounted to a ‘costs agreement’ or some variation of the costs agreement she had entered with Goodman. If that were the case, she argued, the accord and satisfaction must be void because its term precluding any costs review contravened s 3.4.26(5). 47 Put succinctly, the associate judge was correct to hold as he did … The making of the accord and satisfaction was not the making of a costs agreement as defined by the Act. This simple proposition is the complete answer to GLS’s arguments. 48 The most relevant decisions on this principle are [the Court of Appeal’s decision in ‘Beba’] and [Justice Emerton’s decision at first instance in that case in ‘Gadens’] (which was affirmed in Beba). [At first instance in this case, the Costs Judge] referred to both decisions. Beba was a non-associated third party payer which had a right under s 3.4.38(2) to apply for a costs review of legal costs payable. After reaching a compromise of the sum payable for legal costs, paying the compromised sum and receiving certain benefits from doing so, Beba later sought to review the costs in the Costs Court. In Gadens, the trial judge allowed an appeal from the Costs Court, denying Beba the right to review. The Court of Appeal in Beba upheld her Honour’s decision finding: the judge was correct to conclude that section 3.4.48A did not preclude Beba entering into an agreement which finally compromised legal costs as between itself and the lender, such as to shut out its right to request information under section 3.4.38(7) and to apply for a costs review under section 3.4.38(2).[49] 49 As the understanding of the decision in Beba is vital to the outcome of this appeal, I set out the most relevant paragraphs. Ashley JA (with whom Redlich and Priest JJA agreed) said: 73 the language of s 3.4.48A, with its reference to contracting out, has an evident relationship with the conception of a costs agreement. A client and an associated third party payer may enter into such a contract. In doing so, they are permitted by s 3.4.26(5) to contract out of Division 7 — by reference to s 3.4.48A — but only if the client is, or the associated third party payer is akin to, a sophisticated client. A reading that the provisions are in step makes more sense, in my opinion, than a construction that s 3.4.26(5) addresses the time of making a costs agreement, whilst s 3.4.48A addresses contracting out either at that time or when a contract to contract out of Division 7 is made at some later time. I reject such a construction. [74] If s 3.4.48A has the field of operation which I have described, it makes perfectly good sense why the section does not refer to non-associated third party payers. Such persons cannot enter into a costs agreement. Except for the definitional section, they are not referred to in any of Divisions 1-6 of Part 3.4. [75] It is a corollary of the conclusions which I have already expressed that neither ss 3.4.26(5) nor 3.4.48A says anything about the ability of a client or associated third party payer to reach a binding settlement with a law practice respecting the quantum of legal costs charged, or of a non-associated third party payer to reach a binding settlement respecting the quantum of costs charged with the person who is under a legal obligation to pay those costs. Each of these situations — costs having been incurred and charged out — is temporally distant from the time when a costs agreement may be entered into (and then only between clients or associated third party payers with a law practice). 50 In paragraph 74 of that passage Ashley JA was addressing a distinction between categories of third party payers that does not arise in this case. But the conclusion in paragraph 75 was determinative in that case as it is here. It is important to understand the temporal distinction Ashley JA was making. His Honour’s statement that the provisions of ss 3.4.26(5) and 3.4.48A must be read in step in paragraph 73 is to be taken as meaning that they must be read as being concerned with the same point in time: that is, they are both concerned with the time of the making of the costs agreement. His Honour rejected an extended ambit of operation of s 3.4.48A which would also apply to an agreement made after the making of the relevant costs agreement. 51 Ashley JA reinforced his construction of the provisions by considering the practical consequences of the alternative view. After referring to them, he continued: t[79] … the consequences which I have outlined make it extremely improbable that Parliament could have intended them. Whilst it must be recognised that Pt 3.4, and specifically Div 7, is designed to protect persons obliged to pay legal costs, it does not follow that the desirability of parties bringing an end to a legal dispute, including its costs ramifications, and whether or not involving litigation, should be ignored. Nor would it do much for the administration of justice if agreements settling costs issues (whether solely relating to costs, or part of a wider resolution), entered into in apparent good faith, could be at risk of being partly set aside at the instance of the payer, the other party then being at risk, in some cases, of having to repay some part of moneys already received and paid to the party’s legal practitioner. 52 Counsel for GLS attempted to confine Beba’s ambit, arguing that paragraph 75 was merely dicta, with the case being concerned only with the rights of non-associated third party payers. I reject that argument. 53 Counsel also stressed that a costs agreement may be created at the start of a retainer, in the middle or at or near the end of the retainer after all or most of the costs were incurred. Having done so, counsel argued that the most relevant decision was the ex tempore judgment of Brereton J in the Supreme Court of New South Wales in Amirbeaggi v Business In Focus (Australia) Pty Ltd, which is summarised in Beba at [83]. He argued that Amirbeaggi established that a costs agreement created at the middle or the end of the retainer that may be an accord and satisfaction is still a ‘costs agreement’ within the meaning of the Act. Misunderstanding the effect of the Court of Appeal’s remarks about Amirbeaggi, counsel argued that the Court in Beba had expressly endorsed that proposition. However, what the court actually said [at [85], emphasis added] was: What was necessary for his Honour’s decision ended when he held that the deed, being a costs agreement, was void. There would be just the same result in this State, for exactly the same reason. See ss 3.4.26(5) and 3.4.31(1) of the Act. The observations thereafter made by his Honour were made without the benefit of argument. The situation falling for determination in this case did not arise. 54 Properly understood, this passage does not adopt the broader principle in Amirbeaggi. Rather, it merely makes it clear that if an agreement is found to be a ‘costs agreement’ according to the Act but does not comply with ss 3.4.26(5) and 3.4.31(1), a court will likely find that agreement is void. In any event, Amirbeaggi can be distinguished on the basis that there, during the course of the retainer, the parties signed a deed relating to how the solicitors could secure payment of previous fees. The signed deed did not compromise a dispute about legal costs. 55 GLS’s counsel also referred to the decision of Pagone J in Jaha v Defteros [2012] VSC 512, where his Honour found [at [14]] that an oral agreement reached in August 2011 for the payment of costs for outstanding fees and an upcoming trial was a ‘costs agreement’ within the meaning of s 3.4.31 of the Act. However, that case was decided before Beba and there, Pagone J was primarily considering whether the oral agreement satisfied the writing requirements of s 3.4.26(2) of the Act rather than whether there had been an accord and satisfaction. 56 Here, as set out above, the parties made a costs agreement between them at one point in time and, later, following a dispute about the costs, they entered an accord and satisfaction compromising the costs to be paid and displacing any existing right of action for or entitlement to review the costs incurred under the costs agreement. Notwithstanding the breadth of the definition of ‘costs agreement’ in the Act [fn: ‘Legal Professional Act 2004 (Vic) s 3.4.2: ‘an agreement about the payment of legal costs’.’], applying Beba, the accord and satisfaction was not such an agreement and the parties here are not prevented from settling their dispute (including shutting off the possibility of a review of costs).’ It may be seen that even a very modest discount is sufficient to satisfy the test for an accord and satisfaction which brings disputation to an end: in Beba, the lender’s legal costs, billed and yet to be billed, totalled $41,472 and consultants’ costs, for which the borrower was also liable, totalled about $19,000 plus GST (i.e. probably $20,900). The total was about $63,398, and the compromise was to pay $60,000 as one undifferentiated sum for legal costs and consultants’ fees alike. In GLS, the client, who represented herself at first instance, advanced the position that she had made no accord and satisfaction and waived no rights, so the question whether the accord was voidable because of duress or undue influence or mistake was not fully prosecuted. In fact, according to her, an employee of her conveyancer told the lawyers that she was reserving her rights to tax the costs notwithstanding that she was paying the sum required by the lawyers to remove the caveat from her home so she could sell it to pay their fees, and it was her case that that reservation of rights was promptly confirmed in writing. (The lawyers had acted in a sexual harassment claim against her employer in which she had won $100,000 and a limited costs order from VCAT. But the legal costs charged by the lawyers gobbled up her compensation entirely.) And it was on what happened next on which the case turned, and was resolved by reference to the doctrine of ostensible authority of the conveyancer. The question of how equity would deal with a client who was not very fully independently advised and who had been induced to give up their right to taxation, in circumstances where equity would say that that provided a substantial benefit to the lawyers, did not really arise. But when I am asked to advise clients, it is to equity and the presumed relationship of undue influence to which I would be turning my focus, since if a compromise of fees for work already done and already billed is not a ‘costs agreement’, then VCAT would not have jurisdiction to hear an application under s. 3.3.32 of the Legal Profession Act 2004 to set it aside. I would expect the Courts to be highly suspicious of any agreement by which a client waived a right to taxation without being fully informed of their options. GLS did allege that the lawyers had failed in their disclosure obligations, but since the lawyers had taken their fees directly from the compensation payment, the question of how s. 3.4.17(1) interacts with the provisions considered in this three part post did not arise. Section 3.4.17(1) provides that: ‘If a law practice does not disclose to a client or an associated third party payer anything required by this Division to be disclosed, the client or associated third party payer (as the case may be) need not pay the legal costs unless they have been [taxed].’ So the question of whether a client need honour their promise to pay a sum for legal fees already rendered for work already done pursuant to a compromise of a dispute about them in circumstances where there has been a disclosure default must also await answer in another case. I suspect not, on the basis of authorities about the construction of s. 3.4.17(2). Where there have been costs disclosure defaults, that provision prohibits the maintenance of proceedings for the recovery of legal costs, until they have been taxed. Consider, for example Koutsourias v Metledge & Associates [2004] NSWCA 313 at [11], which was touched upon in Beba.

A JUSTICE DOES NOT DECIDE WHAT IS JUSTICE AND WHAT IS THE LAW: HE ONLY APPLIES THE LAW TO A PARTICULAR CASE?

See: http://www.thehoya.com/justice-scalia-addresses-first-year-law-students/ Supreme Court Justice Antonin Scalia (CAS ’57) argued that judges should refrain from making moral decisions during a guest lecture at the Georgetown University Law Center on Monday. In the Hart Auditorium in GULC’s McDonough Hall, 360 first-year law students attended and participated in a following question-and-answer session. “It’s not up to me to decide what is justice and what is law,” Scalia said. “I can’t tell you how often I reach results that I don’t like. You show me a judge that likes the result he reaches all the time and I’ll show you a bad judge by my estimation, because I’m not supposed to make the laws; I’m supposed to apply the laws that the people have adopted directly or through their representatives.” Law Center Dean William Treanor recalled that last year when Justice John Paul Stevens spoke at the law center, he identified Scalia as the Supreme Court’s funniest judge, but Treanor noted he is also highly regarded for his scholarship on constitutional law. “Justice Scalia has profoundly shaped our nation’s jurisprudence as a member of the [Supreme] Court of course, but as a brilliant scholar, an executive branch official and also a member of the Court of Appeals,” Treanor said. “He’s a giant in the history of the law, and it’s a privilege for all of us to hear him.” Professor Randy Barnett introduced Scalia and moderated the question-and-answer session. In his introduction, Barnett said that Scalia is the most famous sitting Supreme Court justice. “Justice Scalia is the most discussed justice on the Supreme Court,” Barnett said. “And that’s true not just in your law class but in law classes across the country, and the reason for that is simple. The opinions he writes are clear, principled and above all, they are interesting.” Scalia began his lecture noting that he and former Chief Justice Edward Douglass White are the only Georgetown graduates to ever sit on the Supreme Court before he addressed his feelings on modern law education. “It has always been in the despair of us originalists that you suckle at the common law,” Scalia said. “Most of your first year is devoted to learning the common law of contracts and property, of torts. When you open your eyes to law, your image of the law is the common-law judge who figures out the right answer to a problem.” Scalia explained that he opposes that image because of its political implications. “It is true that the great judge was the judge that could figure out things,” Scalia said. “But what has intervened between then and now is something called popular democracy, and what that requires; you cannot have a democracy of any extent without a language, a language that’s agreed upon so that the people who write the laws are using the same signals as the people who apply the laws. The job of the modern judge is not to invent the law anymore, not if you believe in democracy anyway.” Scalia also commented on his commencement speech at William and Mary University, where he joked about extending law school to last four years. “There is so much more law to be learned today than there was when I graduated from law school, whole areas of law that didn’t exist,” Scalia said. “If you want to be a lawyer, you have to be learned in the law.” In the second half of the question-and-answer session, Scalia addressed questions about his participation within the Supreme Court, revealing that his law clerks actually have more influence on him than his fellow justices because they often come to conference with their minds made up. “I thrash out the cases with my law clerks much more than with my colleagues. They’re smart as can be; they’re not jaded as I am. It’s a very good process,” Scalia said. “They write the first drafts of my opinion, but I tell them how it comes out. And I don’t think they have undue influence on me. They’re the principal sounding board that I have. They often disagree with me; I disagree with them, which is more important.” Scalia also discussed his infamous proclivity to dissent. “I don’t mind the majority opinions,” Scalia said. “I write the dissents for you guys. Seriously, what’s the use of a dissent in the Supreme Court? You know on the Court of Appeals it has some practical use, you warn off other circuits. … In the Supreme Court, what’s the use? You’ve had your chance. You’ve lost. Why don’t you go quietly? ‘I dissent.’ When I write my dissents, I try to make them not only clear, but interesting.” Scalia said he geared his dissents toward study in law classes because of his hope for the next generation of lawyers. “I’ve given up on the current generation — they’re gone, forget about them. But the kids in law school, I think there’s still a chance,” Scalia said. “That’s who I write my dissents

THREE ROUTES TO JUSTICE FOR ALL SHOULD BE IMPLEMENTED IN AUSTRALIA?

http://www.lawyersweekly.ca/articles/2545 three routes to justice for all The LSUC needs to expand the scope of paralegals,online information and ABS By Noel Semple October 30 2015 issue motttive / iStockphoto.com Click here to see full sized version. Comments? Please contact us at comments@lawyersweekly.ca. Please include your name, your law firm or company name and address. A statutory mandate was given to the Law Society of Upper Canada almost ten years ago: “Act so as to facilitate access to justice for the people of Ontario.” How effectively has it been carried out? Undeniably, access to justice is now taken seriously at Osgoode Hall. Recent initiatives such as the treasurer’s action group on access to justice are encouraging to those who want all Ontarians to enjoy the law’s benefits. While great strides have been made, a great distance remains to be travelled. Three policy areas — paralegal practice, online information, and alternative business structures — illustrate both how far the law society has come and how far it must still go. Paralegal practice The legislation (Access to Justice Act 2006) that created the access to justice mandate also entrusted the law society with the regulation of paralegals. The good news is that paralegal regulation appears to be effective in terms of licensing, codes of conduct and discipline. Lawyers’ fees are beyond reach for most Ontarians when billed hourly. When levied on a contingency basis, they cut deep into recoveries for individual plaintiffs, who are seldom financially secure even after a favourable litigation outcome. It is very important that there be an affordable, but still reliable and regulated, alternative to lawyers. The problem is that the paralegal alternative is open for only a very small set of legal needs: Small Claims Court, administrative tribunals, and minor criminal cases. In family law, which is probably our worst access to justice quagmire, paralegals are prohibited to engage in any independent practice whatsoever. The traditional objection to expanded paralegal practice is that everything outside of the current scope is so complicated and risky that no one without a full lawyer license can possibly offer competent service. This objection should be subjected to comprehensive and objective scrutiny. What types of case can be competently handled by what legal professionals? How do we establish scopes of practice that maximize the public interest, taking into account client interests in price and choice as well as quality? Is it really impossible for licensed paralegals to competently handle, for example, legally straightforward “guideline” child support cases? These questions should be answered through open and rigorous study, informing evidence-based scope of practice definitions. Finding legal professionals Even if the fees are manageable, it is often a struggle for an individual to find a law firm with the right expertise, service package and trustworthiness. Personal referral is the time-honoured way to find a professional, but in our urbanized mass society it no longer works for everyone. The law society’s referral service and lawyer and paralegal directory are already helping access to justice by connecting people to legal professionals. The next step is to build out the directory into a full-featured platform telling prospective clients how to find the perfect firm. Borrowing from sites like Airbnb and TripAdvisor, the directory should include detailed information about each professional’s services and, importantly, prices. This information can be gathered from licensees on their annual reports. Reliable and unbiased service quality information should be in the directory as well. The law society can use practice audits and client surveys to gather this information and make it freely available online. Doing so would make a major contribution to access to justice in this province. Alternative business structures Permitting alternative business structures (ABS) means allowing lawyers and paralegals to collaborate with non-licensees in new ways. Access to justice can flourish if Ontario firms offer innovations such as flat fees, better use of technology and one-stop shopping for legal and non-legal needs. However, it is very difficult for the small, owner-operated law firms which serve Ontario’s individual clients today to provide all of this alone. They need capital and expertise from outside the legal guild. The law society has shown commendable flexibility in permitting professional corporations and multidisciplinary practices. It is now time to take another careful step forward, and permit limited non-licensee investment in and management of law firms. To foreclose on ABS’ access-enhancing potential on the basis of speculative ethical concerns would be gratuitous, given that these concerns can readily be addressed through fine-tuned entity regulation. To foreclose on this potential in order to protect Ontario lawyers from new competition would be a grave dereliction of the law society’s public interest mandate. The next reforms Over the past decade, the Law Society of Upper Canada has done good work to facilitate access to justice for the people of Ontario. The fact that the problem is (obviously) not yet solved is not the law society’s fault. However, this reality does necessitate continued and expanded efforts from the law society, along with the courts, the government, the law schools and the entire profession. The next generation of access-enhancing regulatory reforms should include an evidence-based paralegal scope of practice definition. It should include a full-featured online directory of legal professionals including price and quality information. It should include an open door to alternative business structures, accompanied by fine-tuned regulation to safeguard clients and legal ethics. These are not easy pills to swallow. Although they offer exciting opportunities, they also require a tolerance of new competition and new accountability. For the law society to embrace them will prove that our public interest regulator, and the legal profession that stands behind it, are truly dedicated to making justice accessible to all. Noel Semple is assistant professor at the University of Windsor Faculty of Law. He is the author of Legal Services Regulation at the Crossroads: Justitia’s Legions.