Lewis Blyth & Hooper (a Firm) v Smith

(2015) 48 WAR 467; [2015] WASCA 47

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Costs
2. › Costs agreements
3. › Solicitor and client
4. › Review of costs agreement
5. › Whether costs agreement unreasonable
6. › Failure to provide estimate of costs before agreement executed
7. › Whether failure to provide estimate determinative of unreasonableness or one factor among all circumstances
8. › Legal Practice Act 2003 (WA), s 222(2)
1. Costs
2. › Costs agreements
3. › Solicitor and client
4. › Cancellation of unreasonable costs agreement
5. › Exercise of discretion
6. › Whether discretion to cancel costs agreement capable of being exercised subject to conditions
7. › Whether court may condition cancellation by order removing or uplifting scale limits
8. › Legal Practice Act 2003 (WA), ss 215(2), 222(2)(a)
1. Costs
2. › Costs agreements
3. › Solicitor and client
4. › Fiduciary obligations of solicitor
5. › Disclosure obligations
6. › Relevance of client's sophistication and business experience to scope of disclosure required
1. Appeal
2. › Appellate review of discretionary decision
3. › Whether primary judge made material error of fact or law
4. › Whether result plainly unjust or unreasonable
5. › House v The King (1936) 55 CLR 499

Quick Take

A solicitor's failure to provide a costs estimate before a costs agreement is signed does not automatically render the agreement unreasonable under s 222(2) of the Legal Practice Act 2003 (WA); the court must consider all relevant circumstances including the client's sophistication, business experience, familiarity with the solicitor's rates, access to independent advice, and knowledge of the likely cost and complexity of the litigation. When cancelling a costs agreement under s 222(2)(a), the court may impose conditions including orders under s 215(2) for the removal or uplift of scale limits on taxation.