The death knell of the 'Chorley Exception'​ previously allowing legal practitioners to recover time spent in personal litigation has been sounded!

On Wednesday, 4 September 2019, the High Court of Australia ("HCA") published their reasons for judgment in Bell Lawyers Pty Ltd v Pentelow & Anor [2019] HCA 29 [See the full decision here].

Background of the exception:

Self-represented litigants, whilst able to claim disbursements, were generally unable to claim costs (see generally: Cachia v Hanes (1994) 179 CLR 403). However, as a solicitors costs are quantifiable by courts, where a self-represented litigant was a qualified solicitor, that litigant was able to claim professional costs for the legal work performed themselves (albeit, with some limits [see generally: Ogier v Norton [1904] VLR 536]).

This was exception to the rule was known as the Chorley exception, from the UK decision bearing his name: London Scottish Benefit Society v Chorley (1884) 13 QBD 872.

Background of Bell Lawyers v Pentelow:

In short, a barrister: Pentelow, was allegedly owed money by a law firm: Bell Lawyers, for services and appearance work performed. A dispute arose as to the payment of Pentelow's fees. At first instance in the Local Court of NSW, Pentelow was unsuccessful recovering the fees.

However, Pentelow successfully appealed to the Supreme Court of NSW, and an order for costs was made in Pentelow's favour. Although represented at the hearing, Pentelow had undertaken legal work and attended court on a number of occasions and sought to recover those costs. Bell Lawyers refused to pay those costs, a decision affirmed by a costs assessor, a Review Panel, and later by the District Court of NSW. 

Seeking judicial review of the District Court's decision, the Court of Appeal of the Supreme Court of NSW found in favour of Pentelow, finding Pentelow was entitled to rely upon the Chorley exception, notwithstanding Pentelow's status as a barrister and now a solicitor (see: Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150). A flurry of articles and opinions appeared online considering whether the Chorley exception now applied equally to legal practitioners irrespective of status.

The High Court:

In granting special leave to appeal, the HCA unanimously held the Chorley exception should not extend to Barristers; and by majority (Kiefel CJ, Bell, Keane and Gordon JJ), the Chorley exception should not be recognised as part of the common law of Australia:

“[T]he Chorley exception is not only anomalous, it is an affront to the fundamental value of equality of all persons before the law. It cannot be justified by the considerations of policy said to support it. Accordingly, it should not be recognised as part of the common law of Australia.” [Paragraph 3]

Justices Gageler and Edelman in delivering separate judgements supported the abolition of the Chorley exception.

So where does that leave legal practitioners seeking to recover unpaid fees?

Great question. But in interpreting the judgement of the HCA, perhaps any time a legal practitioner spends on their own matters is not recoverable. Perhaps, in the circumstances, the safest route is retaining another legal practitioner to litigate these matters on your behalf...

'Grey Divorce' - being an adult 'child' during a family separation.

There is a relatively new phenomenon affecting the lives of many young professionals. In 2012, a study in the Journals of Gerontology (source) analysed data between 1990-2010, determining divorce rates among adults aged 50 years and older had doubled. Whilst divorce rates were steadily increasing (45% of marriages in the United States of America), at least a quarter were now in the 50+ bracket.

While divorce at any age is generally a traumatic experience for the children of, or belonging to, the relationship; the new phenomenon of ‘grey divorce’ is silently affecting the lives of many adults. Many now adult-children may feel disinclination to confide in others the internal turmoil of witnessing a family unit disintegrate, which may have been a foundation in their lives until that time. Indeed, Austin-based attorney and author, Janice Green, in her book “Divorce after 50”, comments: “… adult kids have longer established family rituals and home memories than the younger ones, so in some sense the divorce can cause more of an impact”.

Having a family unit disintegrate after thirty-something years has a number of imperceptible impacts. In many cases, adult-children are suddenly comforting and commiserating either one or both of the parents through a situation they did not author. Adult-children become the pillars of the parents’ lives whilst in many cases their own emotional support and needs are not addressed. Children become pseudo-parents.

This is not to say that the divorce wasn't warranted or necessary in the many varying personal circumstances.

Parents may be divulging in their adult-children stories of infidelity, possibly bad-mouthing and accusing the other parent whilst seeking emotional support and advice. These ‘over-share’ conversations, in many cases, are tolerated from a perceived or actual obligation to their parents. In many cases these conversations are without regard to the emotional toll upon the adult-children listening.

Many adult children describe being told by family, friends, and disturbingly therapists, to simply “get over it” (source). This negative messaging is further reinforced by comments of acquaintances who perhaps had parents who divorced when they were very young. Comments range from: “you’re old and mature enough to handle this”, to “you should feel lucky that you had your family as long as you did”. 

Such flippant comments may cause many adult-children to question their own legitimateemotions and responses.

With so much of the psychological research on divorce addressing the effects upon pre-adolescents, it is hardly unsurprising many adult-children feel wholly unsupported. Many internalise feelings of guilt, anxiety and depression to the detriment of their health and wellbeing. This is can be compounded by declining performance in work environments.

Adult-children themselves may lose faith in relationships, shun commitment and cultivate an unhealthy level of cynicism of people and love. Their own relationships may irrepressibly suffer due to a perceived ‘expiry date’ that surely must occur in every relationship.

Family homes are sold, which may feel like a betrayal to the memories adult-children held so dear. Conversations about happy childhood memories are contrasted against the hurt and anguish now experienced. Photos are moved, replaced or destroyed, and with them the familiarity and comfort they once brought. 

Playing counsellor may have cost you extra time in your studies, perhaps you missed that promotion, or you otherwise just feel a general fogginess in your mind’s eye. Tragically, the joy of a graduation, new home or job is offset by the necessitation to organise the logistics of your parents’ interaction – if you don’t celebrate twice.

Huffington Post author, Kasey Edwards, (source) accurately surmises: “Watching the family home and assets being packed up and fought over shatters your world, no matter how old you are. It was as if my safety net in life had gone”. 

So, why am I writing about this on a ‘professional association’ website?

Foremost, I am writing this as an adult-child of grey hair divorce. My family unit disintegrated when I was 29 years old. By this stage in my professional life I had been a Police Officer, Lawyer and Military Officer. I had wide exposure to trauma, violence and human emotion through each of these jobs. I did what many males do – I shut shop. When I did confide in a supervisor and friends, I received many of the flippant responses described above. I stopped talking, but never stopped hurting. It took me two years to finally seek the support I needed from day 1, by that stage it had affected my health, socialisation and work performance – don’t be like me!

Second, as a student of management and leadership, I implore those readers in positions of authority, responsibility and command to care for your people when they choose to confide in you. You can never be quite sure how long your colleague has been contemplating to confide in you and you must never take for granted that they have. Listen with compassion and empathy. Offer support. And please, never dismiss their concerns in a flippant manner.

Finally, to open the channel to those who haven’t yet sought support and may be struggling through their situation as an adult-child in a ‘grey divorce’. If even one person is encouraged to seek support, my message would have been a success.

Joining Bennett Chambers Group

I have joined Bennett Chambers Group, operating out of Level 6, 107 North Quay, Brisbane, Qld, 4000.

Bennett Chambers is named after one of Queensland’s best-known barristers, Colin ‘Col’ James Bennett.  Mr Bennett is remembered for his time as a lawyer and politician, including his dedication to a number of charitable causes. Mr Bennett was one of the longest serving barristers at the Queensland Bar having practiced continuously for over 45 years.

Bennett Chambers espouses the philosophy of Mr Bennett, that all people deserved the best legal representation no matter their life’s circumstances. He believed a level playing field only existed where well trained and committed barristers were prepared to vigorously defend the rights of the weak and poor thus giving them equality with the strong and the rich.

For more information about Mr Bennett, please see his Wikipedia page.

I am proud to work among a number of esteemed colleagues who each embraces Bennett’s philosophy and belief.

Liability limited by a scheme approved under Professional Standards Legislation

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the name is on the wall

LAING, Nathan - Level 6