High Court shuts down ‘Chorley exception’ cost claims for barristers

In a major decision delivered on 4 September 2019, Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, the High Court has ended the right of lawyers to claim costs when they are self-represented litigants, saying the special rule was "an anomaly and an affront to the fundamental value of equality of all persons before the law".

Over 10 years ago, Sydney barrister Janet Pentelow was briefed on a family law case by Bell Lawyers but was refused full payment of her fees.  She sued for the balance, in the Local Court of NSW, but was not successful.

By grant of special leave, Pentelow appealed to the Supreme Court of NSW to obtain recompense for the value of services and was awarded costs in her favour for both the Local Court and Supreme Court proceedings

Upon further appeal by Bell Lawyers to The High Court, the Judges in Bell v Pentelouw, looked at whether the Chorley exception, which had been adopted from England for solicitors, could be applied by extension to barristers for work performed where they are self-represented litigants.

It was decided unanimously that this exception did not extend to barristers.

The Court took the matter one step further, holding that the Chorley exception should not be recognised as part of the common law in Australia. The Court confirmed that the anomalous nature of the Chorley exception is inconsistent with the statutory definition of "costs" in s 3(1) of the Civil Procedure Act 2005 (NSW).

This case ends the ‘undesirable’ practice of self-represented legal professionals being able to claim for costs in litigation where self-interest may prove a barrier to objectivity.

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