Cost Law Commentary

How detailed do Barristers' fee memos need to be?

This question was in issue in a taxation in the Victorian Costs Court last year.  Counsel for the party seeking to review counsel's fees  submitted that entries in the fee memo detailing  "Reading and preparation" were not sufficiently particularised to allow the lawyer and client to determine what documents were read or what was prepared and whether the time claimed for that work was reasonable.  This was despite the fact that the solicitors seeking to review the fees were present at most if not all of the conferences claimed by counsel.  Counsel's costs agreement distinguished between "Reading brief and advising" and "Preparation and conferences", and it was argued that the fee memorandum should also provide a breakdown of time spent "Reading brief", "Advising", "Preparation" and "Conferences".  It was not sufficient to have global fees for "Reading and Preparation".    

The cases of  Clayton Utz Lawyers v P & W Enterprises [2011] QDC 5 and Bartex Fabrics Pty Ltd v Phillips Fox (1994) 13 ACSR 667 were relied on as authority for the proposition that an itemised bill must contain such detail as will enable the client, or those advising him, to determine whether to seek a review of the costs claimed, and that general statements as to time spent reading documents are not sufficiently itemised.

Counsel for the barrister sought to distinguish these cases on the basis they relate to solicitors rendering invoices to clients whereas counsel was rendering fees to his instructing solicitor in circumstances where the solicitor was aware of the nature and volume of material contained in the brief, and was present at the conferences claimed by counsel.  In those circumstances, the memorandum of fees was sufficiently itemised to allow the solicitor to determine whether the time claimed by counsel for reading and preparation was reasonable or whether to seek a review and to advise the clients accordingly.

His Honour Associate Justice Wood held that the memorandum was not sufficiently itemised.  In the context of the costs agreement, the time spent by counsel reading and preparing should not be lumped together and notes of conferences  should refer to the parties in attendance.

We see many fee memoranda from counsel which, in light of His Honour's comments, would not be held to be sufficiently particularised.  This is an issue for both solicitors and counsel, particularly in light of the rulings in Feesty v Henty Jepson & Kelly that clients cannot review counsel's fees unless there is a direct retainer between counsel and the client.