whether a costs agreement between a litigation funder and lawyers should be set aside on the grounds that the uplift fee was incorrectly calculated
whether there was disclosure of amounts to be charged such that the agreement was void or should be set aside
Quick Take
1An arithmetical error in a table within a costs agreement that appears to include disbursements in the calculation of an uplift fee does not render the agreement void under s 327 of the Legal Profession Act 1997 (Qld) where the express contractual provisions consistently and clearly state the uplift is calculated only on professional fees, applying objective contractual interpretation principles.
2A litigation funder that is an associated third-party payer under s 301 of the LPA is not a 'client' under s 334 and cannot invoke s 328 to set aside a costs agreement as unfair or unreasonable on that basis alone; however, s 318 extends disclosure obligations to such payers, and s 316(4) empowers a costs assessor to reduce costs proportionately for failures of disclosure.
3Where a conditional costs agreement identifies the major variables affecting total legal costs and disbursements, and the uplift fee is expressed as a fixed percentage of professional fees, the variables explanation satisfies s 324(3) of the LPA because the uplift necessarily varies with the same factors affecting the professional fees on which it is calculated.
