Costs Assessor insights – Nominal Defendants

Rose Legal Costing has successfully acted on behalf of a law firm in a solicitor/client assessment involving a Nominal Defendant.

Costs disclosure was not provided to the client meaning costs had to be assessed on a ‘quantum meruit’ basis. In addition, submissions were made on behalf of the client that the law firm had no entitlement to recover their costs. Notwithstanding this, the itemised Bill of Costs prepared by Rose Legal Costing, along with their accompanying submissions, secured a recovery of 84% of the professional costs in the Costs Assessor’s determination.

One of the submissions put forward by Rose Legal Costing on behalf of the law firm was that claims involving nominal Defendants are much more complex than other claims.

The Assessor agreed, noting as follows:

“Proving liability against the nominal Defendant for a motor accident claim where the other vehicle is unidentified is always more complex and difficult tha[n] a claim where the other vehicle is identified. The costs acclaimed are consistent with this matter.”

This is useful for practitioners to bear in mind in such cases, but also in instances where liability is contested, or where the opposing parties are difficult to track down. A properly prepared Bill of Costs with appropriate submissions as to the reasonableness of the costs claimed will undoubtedly secure a higher recovery in both solicitor/client and party/party assessments.

Note:

The informal nature of the costs assessment process in NSW brings many advantages including flexibility and avoiding rules of evidence which do not easily lend themselves to issues surrounding costs. One notable disadvantage is a lack of published assessments which would enable the profession to improve their understanding of legal costs. In order to provide insight into the costs assessment process, Rose Legal Costing will be providing useful insights into costs assessments in which they have been instructed.

Details of the Costs Assessor and party names are suppressed due to the fact that such decisions are not binding owing to the nature of NSW Costs Assessments. These insights will assist the profession but should not be used as clear precedents due to the discretion afforded to Costs Assessors.