Assessment of costs - Legal Profession Act 2007 - civil
How do I start an assessment of costs?
You must file a Form 60 – Application for costs assessment (UCPR) to have your legal costs assessed under the Legal Profession Act 2007. You should file a Form 46 - Affidavit (UCPR) in support of the application at the same time.
When you file the application, the registry will allocate a date for a directions hearing before a judge or magistrate.
You must serve a copy of the application and the supporting affidavit on the other party or their legal representative within seven days of filing the application. You may be required to serve the documents on other parties such as a law practice or a third party payer (see Legal Profession Act 2007, s. 339).
How is the costs assessor chosen?
A costs assessor approved by the court can perform costs assessments.
If both parties can agree on a costs assessor to perform the assessment, they can file a request for a consent order with the registry. The request should, if possible, be accompanied by the consent of the costs assessor. The registrar can make a consent order where appropriate and the directions hearing date will be vacated.
If the parties cannot agree on a costs assessor to perform the assessment, the judge or magistrate will appoint an assessor at the directions hearing.
The court can give the costs assessor powers including:
- administering an oath or receiving an affirmation
- examining witnesses
- requiring a party to be represented by another solicitor where there may be a conflict of interest
- extending or shortening the time for taking any step in the assessment
- directing or requiring a party to produce documents
- giving directions about the conduct of the assessment process.
Why should I seek the costs assessor’s consent?
You should obtain the written consent of the costs assessor before you nominate them to conduct the assessment.
The consent should be dated, signed and be included in the application if possible. This will ensure that the costs assessor is willing and available to perform the assessment. It will also allow the assessor to declare any conflicts of interest that might prevent them from conducting the assessment.
A suggested wording for the written consent of costs assessors is:
I, [name], consent to be appointed by the Court and to act as the costs assessor for [name parties of matter: Party A v Party B ].
I am not aware of any conflict of interest or duty that would make it improper for me to act as costs assessor for this matter.
What if the lawyer and client can’t agree that the matter should go to a costs assessor?
The application for a costs assessment will be referred to the court for a directions hearing.
What happens at the hearing?
At the directions hearing the judge or magistrate can:
- canvass any issues or potential problems
- make directions to the parties and decide any relevant issues
- if an itemised bill has not been provided, order that one be prepared, and/or
- order that a particular costs assessor be appointed to perform the assessment of costs.
What happens at the assessment?
The costs assessor will decide on the procedure for the assessment.
The costs assessor must consider:
- whether or not it was reasonable to carry out the work to which the legal costs relate
- whether or not the work was carried out in a reasonable way
- relevant costs agreements
- the fairness and reasonableness of the amount of legal costs in relation to the work including:
- compliance with the Legal Profession Act 2007
- disclosure of costs
- relevant advertising by the law practice about costs and skills
- skill, labour and responsibility displayed by the solicitor
- the retainer and whether the work was done within the scope of the retainer
- the complexity, novelty or difficulty of the matter
- the quality of the work done
- the place where and the circumstances in which the legal services were provided
- the time within which the work was required to be done
- any other relevant matter.
What happens after assessment?
The costs assessor will file a certificate of assessment with the registry within 14 days after the assessment is completed and will give a copy of the certificate to the parties involved.
The parties or the court can then bring the matter on for a directions hearing. Any matters still in dispute can be resolved by the court, and the court will consider the certificate of the costs assessor when it gives its judgment.
What can I do if I am unhappy with the costs assessor’s assessment?
You can ask for written reasons about the decision. The request for these written reasons has to be made within 14 days of receiving the costs assessor’s certificate of assessment. The costs assessor must provide the written reasons within 21 days.
The party requesting the reasons must pay the costs assessor’s costs for preparing the reasons. These costs will form part of the party’s costs in any subsequent review.
You can also ask the court to review the decision of the costs assessor. An application for review must be filed within:
a. 14 days of receiving the written reasons,or
b. 14 days of receiving the certificate of the costs assessor, if you did not apply for reasons.
Notice of this application should be given to the other parties who participated in the assessment.
How much can a solicitor charge?
As a general rule (but subject to individual costs agreements), solicitors are entitled to charge what is set down in the scales of costs for each court.
- Schedule 1 for the Supreme Court
- Schedule 2 for the District Court
- Schedule 3 for the Magistrates Court
Further information about the amount solicitors are entitled to charge can be found in the Legal costs: your right to know fact sheet on the Legal Services Commission website.