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...