Lawyers acting pro bono for successful litigants can recover costs from losing party
The Victorian Court of Appeal has clarified the legality of awarding costs where the successful party has been represented on a pro bono basis. On 17 September, the Court ruled that costs can be awarded where a party has signed a conditional costs agreement with their pro bono legal representation.
The appealing party was relying on the indemnity principle to challenge an award of costs, arguing that judges can only award legal costs where they have actually been incurred. They argued that when availing of pro bono services, no costs are to be incurred and therefore no award should be made. In this case, Ms. Cirillo had signed a conditional costs agreement, so her lawyers would issue no bill unless the Court was to make an order awarding legal costs, or she agreed on a settlement including payment of legal costs as part of the terms.
The Court cited Wentworth v. Rogers, and the obiter comments of Santow JA. He considered that the indemnity principle encompassed enough flexibility to accommodate conditional cost agreements. He underscored the “importance of such agreements in promoting access to justice which may otherwise be unaffordable”. The judges in the current case agreed with this interpretation of the indemnity principle as applied to conditional costs agreements, stating that whether the condition was precedent or subsequent to a successful award of costs was irrelevant.
Click here to read the full judgment in Mainieri v Cirillo [2014] VSCA 227
Click here to read a summary and analysis of the case.
Federal Court clarifies standing rules for class action litigation against multiple respondents
The Federal Court has settled a long-standing conflict on whether each group member in a class action with multiple respondents must have a claim against each respondent.
The Court clarified the federal position on the rules governing class actions. The Federal Court of Australia Act 1976 requires that in order to commence class action proceedings a minimum of seven or more persons must have a claim against the same person. Where cases have had multiple respondents, there have been conflicting authorities in the Federal Court and in Victoria as to whether this means that all group members must have a claim against each respondent.
The Federal Court looked closely at the express wording of the Act. The Court’s view was that the section simply did not address that situation and on this basis, there was nothing to prevent the applicant, having satisfied the requirement that there are seven or more persons taking claims against a respondent– from joining other applicants in respect of whom some group members have claims and some do not.
Click here to read the full judgment in Cash Converters International Limited v Gray [2014] FCAFC 111.
Click here to read a summary and analysis of the case.