Lawyers are entitled to receive reasonable fees for work properly performed on behalf of their clients. The Legal Practitioners Act 1981 (SA) provides that a lawyer and a client may negotiate an agreement concerning costs to be charged by the lawyer [Sch 3 clause 10(c)(i)]. The agreement may be for payment based on:
- a fixed fee, irrespective of the volume of work done;
- the time spent on the matter;
- the appropriate scale of costs (rate of fees approved by the court that hears the matter). Some court scales set amounts for each item of work (such as preparing a letter, or attendance in conference). Other scales fix a lump sum for the complete task — such as an undefended application for divorce
- in limited circumstances, a conditional costs agreement, where some or all of his or her legal costs is conditional on the successful outcome of the matter [Sch 3 clause 25]. A conditional costs agreement must be in writing and may contain an uplift fee so that the client pays more if the matter is successful. However, if unsuccessful, the client will still be required to pay the legal costs of the other party.
Who pays the costs in a court case?
There are two main kinds of legal costs in a court matter.
Solicitor/client costs — the costs of the lawyer's services and associated work in preparing and conducting the case together with the lawyer's direct 'out of pocket' expenses (called disbursements). These disbursements may include: barristers' fees, court fees, government fees, fees for medical or other reports, and fees for expert witnesses.
Party/party costs — the costs that a court may require to be paid by the losing party to the successful party. The lawyers for both sides will normally try to reach agreement about how much should be paid. If they cannot agree the Registrar of the Court will make a decision. Even if they win the case, party/party costs will not cover the entire legal bill because the court will only approve those costs considered essential to take the matter to court and at the rate payable by the court scale.
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