BHP Billiton Limited v Parker (No 2)

The case of BHP Billiton Limited v Parker (No 2) before the court involved a dispute over the interpretation and application of the Rules of the Court, specifically concerning the calculation of counsel costs under Rule 264(5)(a). The respondent, who had previously been awarded damages for an asbestos-related disease, sought to recover the costs of his appeal, which included the substantial fees charged by his counsel, Mr Semmler QC. The appellant, BHP Billiton Limited, contested the fees, arguing that they were unreasonable and that the respondent's solicitors had not complied with the rule in Re Blyth & Fanshawe; Ex parte Wells, which requires solicitors to warn their clients of any unusual expenses that may be incurred during litigation. The central legal issue for the court was to determine whether the rule in Re Blyth applied to the engagement of a third counsel and, if so, whether the respondent's solicitors had adequately warned the client of the potential for these expenses to be unrecoverable.

The court considered whether Rule 264(5)(a) applied differently to the calculation of counsel costs when costs are to be paid between solicitor and client. The court held that the rule in Re Blyth & Fanshawe; Ex parte Wells does apply to the engagement of third counsel and that the solicitor's duty to warn the client about unusual expenses is an important principle of legal practice. However, the court found that the respondent's solicitors had taken steps to inform the client about the potential unrecoverability of the costs. The court accepted that the respondent's solicitors had warned the client of the possibility that the fees might not be recoverable and that this warning was sufficient to meet the requirements of the rule. Therefore, the court ruled that the respondent's solicitors were entitled to recover the costs from the client.

The court's reasoning was that the respondent's solicitors had acted in accordance with their duty to warn the client of unusual expenses and had therefore complied with the rule in Re Blyth & Fanshawe; Ex parte Wells. The court found that the warning given by the solicitors was adequate, as it included an explanation that the fees might not be recoverable if the appeal was unsuccessful. Consequently, the court ordered that the appellant was liable to pay the respondent's counsel fees for the appeal.