Written by Jonathan Lou-Wong
A landmark decision by the High Court in Bell Lawyers Pty Ltd v Janet Pentelow & Anor  HCA 29 has held that the Chorley exception should not be recognised as part of the common law in Australia, effectively extinguishing the right for solicitors and barristers to recover costs incurred when they are self-represented litigants.
As a general rule, a self-represented litigant cannot claim recompense for the value of their services. A longstanding exception to this rule, dubbed the Chorley exception (derived from the English case of London Scottish Benefit Society v Chorley (1884) 13 QBD 872) provides that if a self-represented litigant is a solicitor, that solicitor may recover his or her professional costs.
In rejecting the Chorley exception, the High Court labelled it as anomalous given it does not treat all litigants in the same manner. It “affronts the fundamental value of equality of all persons before the law” by giving a privilege to solicitors only. For this reason, the Court held the Chorley exception could not be extended to apply to barristers.
The Chorley exception is also inconsistent with the definition of “costs” in s 3(1) of the Civil Procedure Act 2005 (NSW). Costs are awarded for professional services “actually incurred," including remuneration for professional services rendered under a contract for services. The High Court explained that “remuneration” does not encompass the payment to a person by himself/herself for services performed by himself/herself. On this view, “the Chorley exception is inconsistent with the statutory definition of costs and, costs being a creature of statute, the Chorley exception has been displaced by the Civil Procedure Act.”
The High Court also explained that a self-representing solicitor lacks impartial and independent advice and objectivity due to self-interest, which may “result in higher legal costs to be passed on to the other party in the event that the self-representing solicitor obtains an order for his or her costs.”
A total of 7 justices constituted the High Court Bench for this matter, the lead judgment consisting of Kiefel CJ, Bell J, Keane J and Gordon J, with Gageler J and Edelman J separately agreeing that the rule in Chorley does not form part of Australian law. Whilst Nettle J agreed with the majority that the Chorley exception could not extend to barristers, his Honour did not believe it appropriate to decide, as part of this matter, that the Chorley exception should be abolished. His Honour explained “the ramifications of abrogating the exception are potentially very wide,” and such a decision should be left to the “Commonwealth and State Parliaments or at least to the Rules Committees or Law Society Committees in the exercise of their representative and regulatory functions.”
Without being recompensed for their time and effort, self-representation is no longer cost effective for solicitors and barristers who must think twice before representing themselves in litigation.
Will we now see a rise in solicitors engaging other solicitors?