Costs Assessment Review - Care and Consideration and 2 million dollar matter

* Practice Direction 22 of 2018 now allows Care and Consideration of up to 35% for matters before than 2 million dollars.

Geatches v Anglo Coal (Moranbah North Management) Pty Ltd & Anor (No 2) [2014] QSC 136

PROCEDURE – COSTS – RECOVERY OF COSTS – where the applicant first defendant seeks review of the decision of a costs assessor – whether solicitor’s care and conduct costs ought be reduced by reason of second counsel’s involvement – whether there was a duplication of allowances for solicitor’s care and conduct

Disputed Items

His Honour considered the items in dispute in regards to Care and Consideration. The Applicant contended that care and consideration should be reduced as the usual allowance or percentage for care and consideration because of the involvement of senior and junior counsel the amounts allowed for the items involve duplication of costs.

The Applicant contended that because of the overlap between Counsel and the Solicitors work, Care and Consideration in respect of Counsel’s fees should be reduced. His Honour found that the argument was spurious in regards to care and consideration on the Solicitors fees. [27] His Honour also found that there was no evidence that the work performed by Counsel eased the burden of work ordinarily performed by the solicitor. [28] In regards to the contention that Care and Consideration should not be allowed considering the involvement of Counsel His Honour effectively dismissed this argument as this argument was not drawn to the attention of the costs assessor under rule 742(5)(b) prohibits the consideration of items not objected to. [26]

In particular the Costs Assessor considered care and consideration of the upper limit of the matter was permissible as the was settled for in excess of $2m, was an important matter for the Plaintiff, the number of documents that were perused particularly in relation to medical matters was considerable and the instructing solicitor appears to have handled the matter. [16]. The Costs Assessor considered that for matters of complexity and the involvement of Counsel nor 30% for care and consideration is of itself not exceptional. [29] The Costs Assessor also requested additional items to be included in the assessment considering the Plaintiff was entitled to the costs of the assessment. The Costs Assessor allowed care and consideration of these additional items at 20%. [19]

In regards to an additional allowance for care and consideration for the additional items in the Costs Statement His Honour referred to Remely v O’Shea & Ors (No 2) [2008] QSC 218 at [19] where McMeekin J stated “that he could not see no good reason why a further modest amount could not have been allowed for the work subsequently required”. The Costs Assessor considered the additional items in the Costs Statement and took this account considering any duplication between the original and additional items in the costs statement. [38],[40][41].

Apart from minor orders His Honour effectively dismissed the Application and sort submissions on costs.