An Update: Victorian Supreme Court Report on Litigious Costs

In response to the two-staged approach to the costs assessment mechanisms recommended by the Supreme Court of Victoria and the County Court of Victoria’s Report on Litigious Costs (the Report), the Courts published a welcome Consultation Paper (the Paper) on the Stage 1 Implementation of the Report.

After considering submissions on issues raised in the Consultation Paper a working group, co-chaired by the Hon Justice Jack Forrest and her Honour Kathryn Kings, is now preparing a proposed time-based costing regime.

In a notice released on 2 May 2023 the Chief Justice advised that if the proposed regime and amendments to the Supreme Court (General Civil Procedure) Rules 2015, Supreme Court (Corporations) Rules 2013 and County Court Civil Procedure Rules 2018 are approved within the estimated time, the new regime is expected to apply from 1 July 2024.


The Consultation Paper

Commendably the Paper, released on 15 December 2022, provided the following:

  • The Report will now encompass the Witnesses’ Expenses and Interpreters’ Allowances, the subject of Appendix B of the Rules:
  • The Paper welcomed submissions on the draft provisions for time-based costing that could be in the Rules. These will relate to both solicitors’ and counsels’ fees which will be reviewed annually. They are set out in Section 3 and Attachment 2 of the Paper by reference to 20 questions to be answered.
  • Additionally, because the Paper does not seek views on the amount of the rates to be reviewed, the Courts have published an online survey seeking data from practitioners on the rates they charge so as to inform the rates to be reviewed .
  • Both submissions in response to the Paper and responses to the survey needed to be submitted by the close of business on 3 February 2023.

The Paper does not affect Stage 2 of the Report and the proposed mechanisms to limit litigious party/party costs similar to the model in England and Wales. The results of the strategic and holistic look at costs commissioned from the Civil Justice Council in England and Wales which may affect that existing model and therefore the proposed mechanisms are still outstanding.

The Report on Litigious Costs

Released on 23 August 2022, the Report followed a review by the Hon Justice Jack Forrest and Her Honour Kathryn Kings that commenced in October 2021. It adopts a two-staged approach to the costs assessment mechanisms replacing the Scale (known formally as Appendix A of the Supreme Court (General Civil Procedure) Rules 2015).

First stage: In the short term the Report recommends that time-costing guidelines (the Guidelines) setting out hourly and daily rates be implemented. These Guidelines are to be based upon the NSW Guidelines 2016, with necessary modification to reflect Victorian practice and should, as a minimum, set out reasonable hourly and daily rates in accordance with the experience of the practitioner or counsel.

Second stage: In the medium term, the Report recommends that mechanisms be adopted to prospectively set limits on litigious party/party costs. These would be similar to those currently used in England and Wales.

The English and Welsh costs model, which will eventually be completely digitalised, is a combination of fixed recoverable costs (FRC) and Costs Budgeting. The benefits of these approaches include improved transparency, consistency and comprehension.

The Report recommends that FRC be piloted in certain types of litigation – specifically, in personal injuries proceedings involving transport accident and WorkCover claims; and TFM proceedings.

Because the introduction of FRC may bring about an increase in the amount of lawyer/client costs, resulting in the client receiving a lesser sum than they would now receive, the Report suggests that a similar approach to that currently taken in Workcover (common law) proceedings should apply to all cases within FRC.

For further detail on the Report, please refer to the author’s earlier article Victorian Supreme Court Review Rejects Litigious Scale of Costs.

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