Section 198 of the Legal Profession Uniform Law (LPUL) stipulates that if a solicitor or client wishes to commence a cost assessment, they must do so within 12 months of the ‘final’ invoice. (Note- this time frame only applies to solicitor/client assessments, not party/party assessments).
S 198(4) LPUL enables a client to make an application outside the 12-month timeframe, but it does not afford the same benefit to a law firm. Somewhat unusually, it also notes a Costs Assessor can make this application out of time. To date, it is unclear how a Costs Assessor can make such an application, particularly if the application has been lodged by the law firm. There is some substance to the argument that a Costs Assessor can, of their own volition and following an application from a law firm, decide that the costs assessment should proceed. This is, as yet untried and untested.
If your firm has let the 12 months pass by and the invoice has not been paid, do not despair. The 12-month timeframe does not impact upon your contractual right to recover these costs, but (subject to the above) it most likely closes the door to the assessment. While a costs assessment is the more desirable approach in recovering these costs for a range of reasons, we also act for firms in commencing court proceedings for recovery of those costs.
It is also important to note that the clock might start ticking without you being aware of this. In Challen (t/a Hawthorn Cuppaidge & Badgery) v Golder Associates Pty Ltd [2012] QCA 307 (“Challen”), the Queensland Court of Appeal considered the issue of what constitutes a “final bill” for the purposes of the time limits set out within the LPUL. Although Challen concerned s 333 of the Legal Profession Act 2007 (Qld), it is in the same terms as s 193(3) LPUL. In considering the effect of s 333, the Queensland Court of Appeal relevantly stated at [44]:
“the final bill must be the last bill for the legal services
that the law practice was retained to provide.”
By way of example, if your firm has been instructed in Supreme Court proceedings, and then was instructed an appeal those proceedings, the clock will arguably start from the last invoice in respect of the Supreme Court proceedings. If the appeal has taken longer than 12 months, and one or more of the Supreme Court invoices remain outstanding, your firm will not be able to commence an assessment of those invoices.
Consequently, make sure you are not out of time in commencing an assessment of these costs.
If you require assistance in regard to outstanding legal costs, or any issues surrounding a costs assessment, get in touch today.