By Christopher Bevan -
Snapshot
- This is the second part of a two-part article which identifies four pitfalls in the Legal Profession Uniform Law 2014 (‘Uniform Law’) regime for costs assessment.
- Pitfall no. 3 is that legal practitioners do not have a right to apply for an extension of time to seek an assessment of their costs where they have not done so within 12 months of the issue of their final tax invoice at the end of their retainer.
- Pitfall no. 4 is the difficulty recovering costs where the costs agreement has been ‘voided’ by the automatic operation of the Uniform Law due to a contravention.
This is the second part of a two-part article which identifies four pitfalls in the Legal Profession Uniform Law 2014 (‘Uniform Law’) regime for costs assessment.
Pitfall No. 3 – Inability of a law practice to extend time to seek an assessment after 12 months
Pitfall No. 3 is the lack of any right to seek an extension of time to apply for assessment by a legal practitioner notwithstanding the existence of such a right for a client and third-party payer.
Section 198(1) of the Uniform Law gives the right to apply for assessment of ‘Uniform Law costs’ to ‘the client, a third-party payer’ (see s 171 of the Uniform Law defining ‘third-party payers’), ‘the law practice’ and ‘another law practice’ (meaning the ‘retained law practice’).
However, s 198(3) mandates the making of the application for assessment within 12 months of the date after ‘the bill was given to… the client’ and, if there was no bill issued to the client, then within 12 months of the payment of the costs being made by the client or the third party payer.
Section 198(4) gives the Manager, Costs Assessment power to extend the time to apply for assessment, as the ‘designated tribunal’ empowered to extend the time under the Legal Profession Uniform Law Application Act 2014 (NSW) (‘Application Act’) (see s 11 of the Application Act, Table 2 item 6).
However, the categories of applicant permitted to seek the extension of time within s 198(4) of the Uniform Law are limited to the client and the third-party payer. There is no right to apply to extend the time given to the law practice or the other law practice, as they are not mentioned in s 198(4).
Accordingly, legal practitioners have no right to apply for an extension of time in which to seek an assessment of their costs where they have not done so within 12 months of the issue of their final tax invoice at the end of their retainer (as ‘bill’ in s 198(3) means the final bill issued to the client).
The result of this inability to extend the time for seeking an assessment of the practitioner’s costs is that the billing practitioner must sue in contract for the recovery of their costs if they have not sought an assessment within this 12-month limitation period.
