Chorley not! – High Court will no longer award costs to self-represented solicitors under the Chorley exception

As the saying goes, “a man who represents himself has a fool for a client.”[1] This sentiment has been confirmed in the recent High Court ruling in Bell Lawyers Pty Ltd v Janet Pentelow & Anor [2019] HCA 29 (‘Bell), which provides that self-represented solicitors will no longer be able to be awarded costs under the Chorley exception.

What is the Chorley exception?

It is well-settled law that a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation.[2] Until Bell, an exception to this rule applied if that self-represented litigant happens to be a solicitor. This exception is known as the Chorley exception and, up until recently, it was assumed that Australian common law had inherited this anomaly from our English forebears. The underlying rationale for the exception, as set out in the old English authority of London Scottish Benefit Society v Chorley,[3] was that it promoted time and cost efficiency through encouraging solicitors to represent themselves in their own personal matters rather than engaging an independent solicitor to act on their behalf. It was posited that this would minimise the impact of an adverse cost order for the other side.

Background to Bell

Janet Pentelow, a barrister, was engaged by Bell Lawyers to appear in a matter before the Supreme Court of New South Wales.  At the conclusion of the matter, a dispute arose between the two parties as to the payment of Ms Pentelow’s fees, leading to recovery proceedings.  Initially, Ms Pentelow was unsuccessful in the Local New South Wales Court, however, later succeeded on appeal to the New South Wales Supreme Court. Additionally, the New South Wales Supreme Court ordered that Bell Lawyers pay Ms Pentelow’s professional costs for the Local and Supreme Court proceedings. On further appeal to the District Court of Appeal of New South Wales, the majority there held that Ms Pentelow was entitled to costs per the Chorley principle, regardless of the fact that she was a barrister and not a solicitor.  By grant of special leave, Bell Lawyers appealed to the High Court.[4]

The Findings

The High Court ultimately found that the Chorley exception does not form part of Australian common law and, therefore, neither solicitors nor barristers may rely on this rule in order to reclaim costs in litigious proceedings. The High Court stated that the Chorley exception ‘was an affront to the fundamental value of equality of all persons before the law’.[5] This criticism stemmed from an underpinning belief that all parties to litigious proceedings, regardless of their profession, should seek independent legal advice. Furthermore, the High Court found that self-represented solicitors may not provide themselves with impartial and independent advice that the court expects of its officers. This, in turn, may affect a solicitor’s objectivity due to their own self-interest. Indeed, this self-interest may cause a solicitor to pass on higher legal costs, in the event of an advantageous cost order.[6] This finding contradicts one of the fundamental justifications for the existence of the Chorley principle, as the High Court found that it is not self-evidently true that the costs to the other party will be minimised when a barrister or solicitor represents themselves.[7]

The lesson

In the aftermath of Bell, solicitors or barristers who elect to represent themselves in their own personal cases will no longer be able to recover professional fees through cost orders. The resounding rejection of the historic Chorley exception marks an historic departure from the English jurisprudence and highlights the High Court’s unwillingness to discriminate on the basis of profession in relation to cost orders.

Written by Kate Meller with the assistance of Claudia Weatherall.

[1] Abraham Lincoln.

[2] Cachia v Hanes (1994) 179 CLR 403 at 410 – 411; Guss v Veenhuizen {No 2} (1976) 136 CLR 47 at 51.

[3] (1884) 13 QBD 872.

[4] Bell Lawyers Pty Ltd v Janet Pentelow & Anor [2019] HCA 29, at paragraphs 4 – 12.

[5] Bell Lawyers Pty Ltd v Janet Pentelow & Anor [2019] HCA 29, paragraph 2.

[6] Bell Lawyers Pty Ltd v Janet Pentelow & Anor [2019] HCA 29, paragraphs 18 – 19.

[7] Bell Lawyers Pty Ltd v Janet Pentelow & Anor [2019] HCA 29, paragraph 18.