Solicitors liability for Barristers fees

Richardson v Poon [2023] QCATA 85

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – LEGAL PROFESSION – CONTRACT BETWEEN SOLICITOR AND BARRISTER – where the respondent barrister provided to the applicant solicitor a costs disclosure and retainer agreement – where applicant did not specifically accept the terms of the agreement – where agreement included a term of deemed acceptance by conduct – where the respondent undertook work in accordance with the applicant’s briefed instructions – whether the applicant accepted the offer contained in the costs agreement – whether acceptance by conduct – whether applicant bound by the costs agreement – whether the applicant liable for the fees rendered to the applicant under the costs agreement – whether separate agreement between the client and barrister to pay fees.

Facts

The Appellant/Respondent a Solicitor appealed a tribunal decision on a minor civil dispute that he was liable for the Respondent/ Applicant’s Barristers fees. [3] The Barrister commenced proceedings just within the 6 years under the s10 Limitations of Actions Act 1974 (QLD) as the client did not pay the Barristers fees. The Solicitor had no active involvement in the proceedings for which the Barrister was instructed [14]. The Barrister forwarded a Costs Agreement to the Solicitor including the normal conditions such as acceptance of the Costs Agreement in writing or by conduct by instructing the Barrister. [12]

Findings

The tribunal found that notwithstanding the fact the Solicitor had no active involvement in the proceedings, the Costs Agreement was with the Solicitor and the Barrister and the Solicitor was liable for the barrister's fee. The Tribunal found the Solicitor accepted the Costs Agreement by conduct and that an experienced Solicitor would normally obtain funds in trust to cover the payment of Counsel’s fees.

Consideration.

The Tribunal referred to s322 of the Legal Profession Act 2007 (QLD) where it held that “a barrister can now enter into a Costs Agreement with the instructing solicitor and can sue on the agreement to recover fees if not paid [2]”. However, s322 refers to a “law practice” and it could be disputed whether a self-employed barrister is a “law practice”. In Petselis v Tatarka [2019] VSC 8 it was held that a client was responsible for the Barrister's fees and not the Solicitor where the facts indicated a tripartite agreement.