The End of Ambit Claim Bills?
Rule 63.85 of the Victoria Supreme Court Rules discourages “ambit claim” bills, by providing that no costs of preparing the bill or attending the taxation shall be allowed if the bill (professional costs and disbursements) is reduced by 15% or more. However, the rule gives the Taxing Officer discretion to otherwise order. The difficulties facing the draughtsperson of a bill are many. Cost allowances by their nature are often discretionary, both as to the fact of the work and the fees to be allowed. There are significant differences in approach across the members of the Costs Court, and in some instances, this variation would be greater than 15%. It is often said that the same bill could be taxed three times, with three different outcomes, given the extent of the exercise of the Taxing Officer’s subjective discretion.
An additional difficulty arises in relation to claims for disbursements, including counsel’s fees. It is problematic for a cost lawyer to “play” taxing officer when including counsel’s fees in a bill of costs, particularly where there is such a wide variation in approach across the Costs Court.
A better option is to rely on the offer of compromise provisions, if it looks like the bill will be reduced by more than 15%.