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Cost Law Commentary

Legal Profession Act or Legal Practice Act?

The recent decision of Baldsing v Voitin Walker Davies is an interesting one, albeit possibly somewhat limited in its application.  This was an appeal from a decision of a Magistrate arising out of a claim by solicitors for unpaid fees. The solicitors were initially retained in March 2005, prior to the commencement of the Legal Profession Act 2004.  The principle defence to the debt proceedings was a denial that any fees were owing, on the grounds of negligence, failure to make proper cost disclosure as required by the Legal Practice Act 1996.  Alternativelythe client sought a reduction of costs pursuant to s 91 of the 1996 Act. Finally there was an allegation of misleading and deceptive conduct in that the solicitors represented that the Legal Profession Act 2004 applied to all bills of costs.

The Magistrate considered whether the Legal Practice Act or the Legal Profession Act was the applicable legislation. He found that the 1996 Act applied to bills sent from May 2005 until July 2008, and that the 2004 Act applied from 22 July 2008, when a cost agreement was entered into between the parties.

He also found that, even if the solicitors had represented the 2004 Act applied to all bills rendered, this did not cause the 2004 Act to apply.   The client appealed this finding.  Macaulay J found no error of law in the Magistrate's finding that the alleged representation that the 2004 Act applied, could not be relied upon to invoke section 3.4 .17 of the Act to prevent the solicitors recovering costs of the period up to 22 July 2008.

In relation to the s 91 argument, the Magistrate found that he did not have power under section 91 to reduce the bills of costs if satisfied that the solicitors had not given disclosure as required by section 86 of the Act. He concluded that this power was only vested in the Taxing Master of the Supreme Court, being the person who could undertake the assessment referred to in this section. On appeal, Macaulay J upheld the magistrate's decision and found no error of law.