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Solicitor in person costs

Solicitor in person costs

By Andrew Tabone

Civil Procedure Courts Litigation Practice Management 


The LIV Costs Lawyers often receive queries from practitioners regarding their entitlement to recover professional costs in instances where they have appeared as a self-represented litigant.

It is generally well known that “costs are intended to compensate a successful litigant for expense incurred in conducting the proceedings and that, since unrepresented litigants will not have incurred legal fees, it would be inappropriate to make an order for costs that would effectively enable them to profit from the proceedings.”1 This is known as the indemnity principle, and most practitioners will be aware that it operates to limit recovery to the costs actually incurred.2

This raises the question, is there an exception for solicitors from the indemnity principle, and if so, is this exception still valid in our evolving regulatory landscape?

The Chorley Exception

A lawyer who represents himself or herself is generally exempt from the indemnity principle and is entitled to recover most of their professional costs as well as disbursements.3 This exception, often referred to as the Chorley Exception, has its roots in the 1884 decision of London Scottish Benefit Society v Chorley and subsequent application in the High Court ruling of Guss v Veenhuizun (No 2) (1976) 136 CLR 47 and in contemporary Victorian cases.

It was reasoned in Chorley that a solicitor in person is entitled to recover their costs as is it is not merely as loss of time spent preparing for the matter, but a quantifiable loss of money as the solicitor would usually be permitted to charge for this work.

The exception has been applied in the Victorian courts. In Winn v Garland Hawthorne Brahe [2007] VSC 360 it was noted that:

“There has now been a longstanding rule of practice that a solicitor who is admitted to practice in a jurisdiction is entitled to an award of costs where that solicitor has acted for himself or herself as a litigant and succeeds in the litigation.”4

The Chorley Exception, as it applies in the Victorian jurisdiction, is not without its limitations:

  1. The solicitor must be permitted to practice;
  2. The solicitor must not charge for attending upon themselves; and
  3. The solicitor’s fees must be reasonable.

The exception only applies if the solicitor is admitted to practice and holds a practising certificate in the relevant jurisdiction

For a solicitor to be entitled to recover the costs of appearing in person, he or she must be permitted to practise in the relevant jurisdiction. This is supported by the 2015 Victorian Supreme Court matter, Batrouney v Forster (No 2), in which it is reasoned that the “exception has no application to a lawyer who does not have a current practising certificate entitling the lawyer to charge for the relevant legal services.”5

Solicitor’s Attendances

The Chorley exception is tempered by the limitation that a solicitor in person is not entitled to costs associated with obtaining instructions or for attendances. This is as the solicitor in person can be described as their own client.6

In Chorley it was reasoned that a solicitor in person “cannot be charged for consulting himself, instructing himself or attending upon himself.”7 These limitations have been maintained in the contemporary authorities.

The exception is tempered by the principle of reasonableness

As with all costs recovery, the entitlement to costs is tempered by the reasonableness of costs incurred.

Practitioners will be aware that pursuant to Section 172 of the Legal Profession Uniform Law Application Act 2014 “a law practice must, in charging legal costs, charge costs that no more than fair and reasonable in the circumstances.”8

Andrew Tabone is a lawyer with LIV Costs Lawyers.

The Manager of LIV Costs Lawyers, John Colonna, will be presenting other handy costs tips for lawyers in all areas of practice at the upcoming Costing Fundamentals workshops on 14 June and 20 June. Register today for this two-part workshop!

1. Dp v The Law Society of the Australian Capital Territory [2006] ACTSC 61.

2. Quick on Costs at 20.880.

3. London Scottish Benefit Society v Chorley (1884) 13 QBD 872 & Guss v Veenhuizun (No 2) (1976) 136 CLR 47.

4. [2007] VSC 360 at 4, see also Brott v Almatrah [1998] 2 VR 83.

5. [2015] VSC 541 at 168.

6. Cachia v Hanes [1994] HCA 14 at 12.

7. Ibid at 875-6.

8. Legal Profession Uniform Law Application Act 2014 (Vic) 172.

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