Clone Pty Ltd v Players Pty Ltd (No 10)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CLONE PTY LTD v PLAYERS PTY LTD (No 10)
[2024] SASC 72
Judgment of Auxiliary Judge Norman a Master of the Supreme Court
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - COUNSEL FEES
Rulings as to Counsel fees on a taxation of costs.
Supreme Court Civil Rules 1987 (SA) r 101.07(6)(a), referred to.
Jehovah’s Witnesses v Pegasus Leasing Ltd [1996] SASC 5968; Benad v Utah Construction and Engineering Pty Ltd [1968] 2 NSWLR 464; Davey v Colovic [2021] SASC 29; Court v Whyte (1978) 26 SASR 307; Wagdy Hanna and Associates Pty Ltd v Gavagna (No 2) (2017) 316 FLR 215; Australian Blue Metal Ltd v Hughes [1970] 2 NSWLR 119; Magna Alloys & Research Pty Ltd v Coffee (No 2) [1982] VR 97; Re Lamrock, Brown & Hall [1908] VLR 238; Re Snell (1877) 5 Ch D 815; Re Cosedge (1885) 29 SJ 306; Slingsby v Attorney-General [1918] P. 236; Clone Pty Ltd v Players Pty Ltd (No 9) [2024] SASC 59, applied.

CLONE PTY LTD v PLAYERS PTY LTD (No 10)
[2024] SASC 72
Civil: Application

Auxiliary Judge Norman: This is the continuing taxation of the applicant’s costs in these proceedings. At hearings on 6 May 2024 and 7 May 2024 when Mr W Ericson with Ms D Paitarides appeared for the applicant (Clone) and Mr T Cogan with Mr J Hopgood appeared for the seventh eight and tenth respondents (Players), two issues arose for consideration, and submissions were presented.
The first issue (the misconduct issue) relates to the costs of the unsuccessful application made by Players seeking orders that in assessing counsel fees claimed by Clone, certain discrete items within those counsel fees should be disallowed by reason of “serious malpractice” which they submitted Clone’s counsel were found to have engaged in at the 2005 trial before Vanstone J. This application was dismissed in reasons published on 30 April 2024.[1] In summary, it was found that the application was an impermissible attack on the High Court’s costs order, that it had not been established that the conduct of Clone’s counsel was causative of unnecessary and unreasonable costs, that there was an impossibility of apportionment such as had been sought by Players, and finally, that contrary to Players’ submission, fresh factual findings would be required. Clone now seeks the costs of its opposition to that application both on an indemnity basis and to be certified as fit for senior counsel.
[1] Clone Pty Ltd v Players Pty Ltd (No 9) [2024] SASC 59.
The second issue (the preparation time issues) relates to the amount which should be allowed to senior and junior counsel for the time spent by them in preparation for the trial before Vanstone J.
I reserved my decisions on both of those issues and now provide my reasons accordingly.
The misconduct issue
Mr Ericson, for Clone, argued that because this issue concerned very serious allegations of misconduct against senior practitioners including a senior counsel, junior counsel, and a long-serving solicitor, it thereby involved reputational issues which are one of the matters that can justify fitness for senior counsel. He referred, as an example, to defamation cases where even though the quantum of damages might not be large by normal standards, persons’ reputations were involved. He submitted accordingly that this matter warranted Clone obtaining the assistance of senior counsel.
He further submitted that there should also be an indemnity costs order, contending that there were several reasons why such an order should be made. The first was the fact that, as had been found, the application was in effect an attempt to relitigate a matter that had been precluded against Players by reason of the judgment of the High Court. One of the accepted grounds on which indemnity costs might be awarded was when parties sought to relitigate matters that they had already lost. In the present case, at issue was the costs which had already been considered by the High Court. This took it out of the general run of the mill, and it was an attempt to attack or vary the cost order itself, and thus something which lay outside of a normal taxation and which should be the basis for an indemnity costs order.
The second ground on which Clone relied was the fact that there had been no attempt or ability by Players to point to any specific additional costs which had been incurred. The court had considered this and had accepted this submission. Clone had raised this issue from its commencement, and had pointed out since then that Players had never identified any specific item of work which had necessitated any additional costs. Accordingly, not only was Players precluded by the issue of estoppel, but further it could never have succeeded in the absence of being able to point to any item of specific work which would not have been done.
Finally, the court had found that Players would require fresh factual findings to be made, even though they had disavowed any attempt to ask it to make such findings.
Accordingly, there were several grounds upon which the application had been hopeless, so its position was that Players had bought a hopeless allegation involving allegations of misconduct which had failed. Comprehensively, this was an appropriate basis for awarding indemnity costs and such an order should be made. Absent this, even on a standard cost basis the argument should be certified as fit for senior counsel.
Mr Cogan, for Players, submitted that its case was no different from any other preliminary or side issue involved in a taxation of costs. It had made an application on the question of misconduct but had failed in this regard. This was no reason for allowing indemnity costs. It was clear from the judgement that the only issue in relation to misconduct was a reliance on findings that had already been made, and Players’ argument had been that in the light of those findings, certain costs should be excluded. This alone did not warrant an indemnity costs order. Even if there had been an assertion of new facts relating to misconduct, this still would not have brought the matter into the category of cases where a special cost order would be justified. What mattered was what the issues were, whether it was appropriate to raise those issues, and whether there was a reasonable argument in favour of them. It was appropriate for Players to raise the argument as there were issues which needed to be considered. In the result the court had delivered a lengthy judgement showing that there were such issues. Because of this, the costs should be on a standard basis and the matter certified as fit for junior counsel. In relation to the reputational issue, it was submitted, this had already been determined previously, and Players had not been asking for additional findings of misconduct to be made. Accordingly, there was no need for senior counsel to have defended the reputation of the counsel involved.
I have considered these submissions.
First, I have concluded that although a standard costs order in Clone’s favour is appropriate (this is not opposed by Players) this is not in my view an argument which warranted an order for indemnity costs. Although the categories for awarding such costs are not closed, there must be special and unusual features to justify such an award. As was observed in Jehovah’s Witnesses v Pegasus Leasing Ltd,[2] it is beyond question that the making of an order for indemnity costs is only justified in special circumstances. Olsson J wrote in that case that there were many reported cases as to circumstances justifying the award of indemnity costs, however most merely stood as examples of situations said to justify a specific order. The principles provided that indemnity costs were only to be awarded where there was demonstrated to be some special or unusual feature in the case to justify the court in departing from the ordinary practice. The categories in which the discretion to award such costs were not closed, but it was is usual to confine orders for indemnity costs to situations in which the court considered that it ought to mark its disapproval of inappropriate conduct on the part of the party ordered to pay the costs. This might be either an improper motive, or conduct by the party concerned, which had inevitably imposed an undue burden on the other party.
[2] [1996] SASC 5968.
In my reasons dismissing Players’ application, notwithstanding that it was dismissed, I noted that notwithstanding the High Court’s costs order in favour of Clone, there is a specific rule relating to the taxation of costs, 1987 rule 101.07(6)(a), which enables a taxing Master to consider whether the costs to be allowed should exclude any costs which had not been necessarily and reasonably incurred by the party in the conduct of the litigation. In my reasons, the terms and effect of this rule and its successor rules were comprehensively discussed at paras [66] to [72], as was the proper scope of the Court’s power on a taxation at [73] to [80].
Ultimately, I ruled that where a trial Judge or appellate court had specifically considered and definitively ruled on a costs issue, it was inappropriate for the court taxing the costs to interfere or to make a contrary ruling inconsistent with the terms of the costs order itself. However, the matters raised by Players in its application do not in my view warrant a finding that the court disapprove its conduct such as to order that they pay Clone’s costs on an indemnity basis. The tension between the costs awarded by a trial or an appellate court, on the one hand, and the exercise of the taxing officer’s discretion pursuant to 1987 rule 101.07(6)(a), on the other had not previously, as far as my investigations revealed, been previously considered by a court.
Nor do I consider that the fact that there had been no attempt or ability by Players to point to any specific additional costs which had been incurred should justify an indemnity costs order. The terms of 1987 rule 101.07(6)(a) are broad, they refer simply to costs which have not been necessarily and reasonably incurred. The rule provides a degree of latitude to the taxing officer.
The same observations apply to the findings that there was an impossibility of apportionment such as had been sought by Players, and that fresh factual findings would be required.
Secondly, I have considered Clone’s application that the argument be certified as fit for senior counsel. The appropriate test for such an order is whether the retention of senior counsel is justified in the circumstances.[3] One of the circumstances might be where there is no direct authority (either in South Australia or elsewhere in Australia or New Zealand) dealing with an issue raised, even though the volume or material to be handled is minimal.[4]
[3] Benad v Utah Construction and Engineering Pty Ltd [1968] 2 NSWLR 464, Collins J at 466.
[4] Davey v Colovic [2021] SASC 29, Parker J at [17].
Another will be when a person’s reputation is under question, as has been referred to by Mr Ericson in his submissions. Clearly, that was the case here with respect to the conduct of both senior and junior counsel. This Court acknowledged this in the context of defamation proceedings in Court v Whyte[5] where notwithstanding that a plaintiff in a defamation claim recovered damages below the jurisdictional limit, he was awarded his costs on the Supreme Court scale by reason of the fact that he was seeking to vindicate his professional reputation in this Court.
[5] (1978) 26 SASR 307.
By reason of the circumstances that this issue involved both an argument involving the scope of 1987 Rule 101.07(6)(a) where there was no direct authority to the extent of that rule, and because the professional reputation of senior and junior counsel at trial was under examination, albeit indirectly in the circumstances, I have determined that the argument should be certified as fit for senior counsel.
The preparation time issue
An issue has arisen in the context of counsel fees claimed during the trial for the preparation of senior and junior counsel prior to its commencement of the trial. These are set out in various items of Clone’s bill of costs FDN 146 (2 volumes). It is sought that each be assessed on a lump sum basis and this is clearly appropriate. There is little published authority in relation to counsel’s preparation time for trial.
Clone has provided a discrete schedule relating to preparation time for both senior and junior counsel setting out the total number of days spent by each. The amounts claimed for preparation are the sum of $60,990 for junior counsel, and the sum of $58,575 for senior counsel. A table modelling counsel fees in Excel Format has also been provided, linking these with Clone’s claim for days spent by counsel at the trial, which have already been taxed. The trial time schedule shows that junior counsel spent 27 full days at trial and in relation to his preparation time the time claimed is for 33.3 days. It further shows that senior counsel spent 27 full days at trial and in relation to his preparation the time claimed is for 23 days. Mr Cogan has acknowledged that preparation time of senior counsel would be expected to be lower.
Mr Ericson submitted that there is a general rule of thumb that normally taxing officers regard allowing about one day of preparation for one day of trial as appropriate. He said that this rule of thumb had been applied by taxing masters since “time immemorial.” It is likewise accepted by Mr Cogan as being a quick and simple manner of assessment of such a claim on a lump sum basis.
In support of Clone’s claims for preparation by junior and senior counsel, Mr Ericson contended that the present case was not one where the claims for preparation should be reduced downwards on taxation, because by its very nature the trial involved a large amount of preparation. There had been a considerable bulk of documentation under consideration, all of which had to be carefully assessed, because it involved the dealings between two contentious parties over a time of several years. Further, in addition, there were important issues of credit, for example the clearly apparent disputes between Mr Griffin on behalf of Players and the witnesses for Clone as to the whole of the photocopying issue, which had to be considered in the light of various legal scenarios. An example was the request for rectification by Players. As had become apparent from the opinion of junior counsel, this issue needed to be considered both in the context of the lease as it was but also in the context of it as it had been rectified. There were also issues relating to the entry into the agreement, and what it was. It was not a simple case of construing a couple of clauses in a contract, rather it was factually and legally complex, as could be seen from the fact that the matter was taken on appeal both to the Full Court and to the High Court. In these circumstances it was submitted that it was not a case where the court should depart downwards from one day’s preparation to one day’s trial. The time spent was not disputed, and it had been recorded by counsel. Looking at a day for preparation for a day of trial yardstick, for a 33 (on average) day trial it could be seen that senior counsel had gone below the yardstick (4 days less) and junior counsel had gone above it (six days more). These could be roughly averaged out. Clone’s primary submission was that by having regard to the fact that the amount of preparation time was averaged out very closely to the number of trial days, in those circumstances the preparation time should be allowed in full. However, if the court was disinclined to come to this conclusion, then the appropriate assessment would be to allow senior counsel 23 days in full for preparation, and to reduce the time spent in preparation by junior counsel from 33 days down to 27 days, which would allow, in effect, one’s day preparation for one day of trial overall. Unless the matter was assessed on an averaging basis, the court should only reduce junior counsel’s preparation claim. It should have regard to the fact that normally junior counsel would end up doing more of the “grunt” work and this probably accounted for why junior counsel did more preparation and senior counsel did less. If senior counsel had had been preparing for the trial himself, he would have done more work overall.
In summary, Mr Ericson submitted, the preparation claims should be allowed in full, but as a fallback, senior counsel’s claim should be allowed in full and junior counsel’s fees reduced to 27 days of preparation time.
In response, Mr Cogan submitted that although the court had the records of times spent by counsel, the assessment process had to allow for the probability that not all the work undertaken was necessary, and there would be some degree of duplication and excessive attendances to maximise Clone’s prospects of success. It will be extraordinary if on an item-by-item taxation there would not be some reductions. He noted that during the taxation the court had reduced various trial fees of both counsel. The safest way to proceed in the absence of an itemised assessment of each claim was to reduce each of their claims for preparation time by 25%. This would provide a broad axe figure and cater for the reality that some of the work would almost certainly have been duplicated and would be excessive with a view to achieving the maximum chance of success by Clone. It would be in keeping with the experience of the court in taxing each counsel’s invoices for attendance at the trial itself.
In reply, Mr Ericson submitted that preparation time was usually assessed as a lump sum because otherwise counsel would have had to keep a record of everything they had read and noted, and this was simply not done. Solicitors were set up with offices and staff to keep detailed cost entries, but barristers were not set up the same way. As to the suggestion that the results of the taxation of court time spent by counsel should be applied as a guide to the assessment of preparation time, he submitted that this would be inappropriate. It could not be assumed that what applied to one area of work would apply to the other. The safest way would be to apply the rule of thumb, and there was nothing to say that this was a case where unusually less time would have been spent. There should be no presumption that counsel had overworked the matter, and there was no authority for this approach to be taken. The nature of the matter was that it had to be assessed using the lump sum method, and if preparation time was to be taxed on an item-by-item basis this would mean that there would have to be evidence called on every piece of preparation for every day and this could never be provided.
In his final submissions. Mr Cogan took issue as to Mr Ericson’s contention that counsel should not be expected to keep notes as to what they did on a day‑by‑day basis. Obviously, they were not costing their work on a scale such as where solicitors keep very detailed records, but as a matter of experience counsel usually kept some form of note of what they had done on each day for which a charge was made. Often, he submitted, they used a spiral notebook where they made a note of what they did in a very general sense, such as examining a particular issue, or the preparation of cross examination of a particular witness. He also submitted that the very complexity of the issues supported the submission that there was likely time spent by counsel on making sure, in their own minds at least, of increasing or maximising the chances of success- the very complexity of the matter suggested that this was a likelihood.

In Mr Ericson’s final submissions, he said that the complexity of the case suggested that counsel would need to spend more time on it. In relation to counsel’s notes or recollections, he observed that the court was taxing this claim some 20 years after the event, which made that exercise difficult. He reiterated his primary argument that because of the matter’s complexity, more time should be allowed for preparation by counsel.
I have considered these submissions.
The concept of preparation fees for Counsel is included in the Supreme Court Guide to Counsel Fees applicable for the period between 30 July 2001 and 30 June 2007, which covered the period of the trial before Vanstone J and the period leading up to that time. Item 2 of that Guide refers to “Conferences and preparation time and other times necessarily and reasonably engaged, not otherwise provided for”. The hourly rates during that time range from $182-$280 per hour for junior counsel and $280-$350 per hour for senior counsel, and the daily rates range from $910-$1890 per day for junior counsel and $1890-$3500 per day for senior counsel.
During the early stages of this taxation, Judge Withers (who was then hearing the matter) provided a ruling on 5 November 2008 that it would be appropriate for senior counsel to be allowed $300 per hour for, inter alia, reasonable preparation, and with respect to junior counsel the sum of $180 per hour up to 1 July 2004 and $230 per hour thereafter for reasonable preparation. Lower rates of $140 per hour for junior counsel and $200 per hour for senior counsel were allowed for reading time. There was accordingly a seemingly differential allowance made by His Honour for pretrial work involved in preparation, and pretrial work involved in reading.
Noting that preparation fees are specifically allowed in the Guide (they are also noted in the current Indicator to Counsel fees), it is nevertheless of some assistance to have regard to the historic concept of preparation fees.
In Professor Dal Pont’s The Law of Costs (Lexis Nexis, 5th Edition) at paras 17.48 to 17.51, the learned author observes that the traditional basis of charging counsel fees for a court hearing was via a brief and refresher, and counsel fees had been taxed as between party and party on this basis. Preparation for trial was incidental to the central task for which counsel’s fees were paid, and a party who sought a departure from that traditional basis carried the onus of satisfying the taxing officer that the traditional method of fee marking could not reasonably have been followed in the circumstances of the case. However, with the increasing trend towards warranting the allowance of preparation fees at a daily rate, the onus was unlikely to be a weighty one.[6] Although a taxing officer had a discretion to allow a separate fee for preparation as to facts or law or both, the exercise of this discretion was rarely regarded as necessary or proper for the attainment of justice.[7] However, there were clearly cases where some preparatory work for the hearing had to be allowed for separately, and there were, moreover, various types of cases in which the preparation work in counsel’s chambers alone would be very lengthy leading up to the hearing. These types of cases could not be listed exhaustively, but ultimately a taxing officer would allow preparation fees, usually fixed at a daily rate, where the case was exceptional compared to the large number of cases comprising the usual run of the mill litigation.[8] In modern times, cases where it was proper to allow preparation fees at a daily rate on party and party taxations were likely more common, more numerous and arguably less exceptional, because legal practice had witnessed the emergence of new and complex work on a scale previously unprecedented, with attendant complexity. If it was determined that a separate preparation fee should be allowed, the quantum would be governed chiefly by the complexity and extent of the matter requiring preparation, the length of preparation reasonably required in the circumstances, and the daily or hourly rate allowable to counsel having regard to his or her seniority and expertise. Clearly, this is recognized in Item 2 of the Guide to Counsel fees applicable in these proceedings.
[6]    Wagdy Hanna and Associates Pty Ltd v Gavagna (No 2) (2017) 316 FLR 215, per Mossop J.
[7]    Australian Blue Metal Ltd v Hughes [1970] 2 NSWLR 119 at 125 per Helsham J.
[8]    Magna Alloys & Research Pty Ltd v Coffee (No 2) [1982] VR 97 at 112 per Fullagar J.
The topic is also discussed in Quick on Costs (Thomson Reuters) 2012 at paragraph [280.230]. The learned author writes that preparation fees are one of the particularly problematic areas on a taxation of costs, and that the case law holds that preparation and reading fees are only allowable as between party and party on particularly complex applications, there being an element of preparation in both the brief fee and the daily fee. For this reason, it was important that counsel provided details of what they have done as part of their preparation, to assist in argument as to why preparation additional to the daily fee should be allowed. It was also important for counsel to understand what was covered by the term preparation, and to not use the term as a generic one to cover all work done prior to a hearing. The taxing officer or judge had to be satisfied that the preparation fees were reasonably and properly incurred. The learned author refers to both Magna Alloys & Research Pty Ltd v Coffee (No 2) (supra) and to Prudential Finance Ltd v Davander Nominees,[9] where Ashley J found several principles to be relevant. These included that a brief fee should be taken to include preparation extending up to at least a substantial part of the day before the hearing, that remuneration for preparation beyond that which should ordinarily be included in a brief fee might be provided for by an increase in the brief fee and consequently the refresher fee, that regard should be had to the complexity and extent of the matter requiring preparation, that the length of preparation had to be reasonably required in the circumstances, and that the daily or hourly rate had to have regard to his or her seniority and expertise. Ashley J further held that a party claiming party and party costs for time spent in preparation (separate from a fee on brief) had to show that the time was expended, that it was necessarily expended, and that the hourly or daily rate was proper in the circumstances.
[9] [1992] 1 VR 468.
To reiterate, although preparation fees are specifically allowed in the Guide, observations appearing in the above texts and caselaw remain instructive as these emphasise that although preparation fees will be allowed in appropriate cases, the onus remains on the claiming party to establish that they are necessary and reasonable.
I turn to a consideration of the summaries of preparation time provided by Clone and the detailed invoices of counsel rendered to Clone. Although some breakdowns as to the work undertaken have been provided in the invoices and in the schedules, these are not comprehensive. In the case of junior counsel, only 13 of the 46 items comprising preparation time give any detail. These 13 items identify “preparation of submissions”, “preparation of papers for senior counsel brief”, preparation of argument”, “preparation of brief”, “chronology”, “chronology and long conference at Grope Hamilton”, “actual/ostensible authority”, “the in-principle proposal”, “review of evidence” (two dates), and “preparation of closing address” as being the work undertaken. The remaining items are silent as to their content. In the case of senior counsel, only 4 of the 25 items comprising preparation time give any detail. These 4 items identify “conferring with [junior counsel] to draw amendment to statement of claim”, “reading, noting up and consideration of amended pleadings” (two dates), “outline of argument on suspensive conditions and on Dalgetty v Rizzon”.
A difficulty arising from this lack of detail arises by reason of Judge Withers’ ruling that different rates will be allowed for reasonable preparation, conferences, settling documents, and ancillary attendances, on the one hand, and for reading time, on the other. Irrespective of the number of days to be allowed for each counsel which require to be determined, it will be necessary for the court to hear submissions on how the application of the two rates is to be determined, as in the case of each counsel no breakdown is given as to what time involved reading and what time involved other work.
Both Mr Ericson and Mr Cogan have addressed submissions on the amount of detail required to be provided as to the work undertaken by counsel. I discussed this topic in the context of solicitors’ attendances in my reasons in Clone Pty Ltd v Players Pty Ltd (No 4) (supra) at [53] to [79]. I observed in those reasons that in solicitors’ claims for legal costs, although the description of each item should be as brief as possible, it should however provide enough detail including the nature of each attendance and what it is about, to enable the respondent to make appropriate offers and/or items of dispute, and for the taxing officer to make a ruling. For claims to be substantiated and allowed as proper costs, the claiming party must ultimately sufficiently detail the work undertaken in order to demonstrate that it was reasonably and necessarily undertaken in the circumstances. I referred in this regard to authority including Re Lamrock, Brown & Hall,[10] Re Snell,[11] Re Cosedge,[12] and Slingsby v Attorney-General.[13]
[10] [1908] VLR 238.
[11] (1877) 5 Ch D 815 at [826].
[12] (1885) 29 SJ 306.
[13] [1918] P. 236 at page [236]-[241].
Notwithstanding the “rule of thumb” apportioning preparation time to the length of a trial, I do not see that there should be any real distinction in this regard between the approach to be taken to solicitors’ costs, on the one hand, and to counsel fees, on the other. As a paying party, a respondent to a claim for costs is entitled to provision of sufficient details to analyse the work done and the time taken, so that it can agree to the figure, or challenge it, and for the taxing officer to make a ruling when required. As is observed by the learned author of Quick on Costs, it is important that counsel provide details of what they have done as part of their preparation to assist the parties and the court as to why this should be allowed, and counsel should not use the term “preparation” as a generic one to cover work done prior to a hearing. Although voluminous detail is not necessary, some general description of what has been undertaken on a particular attendance is required if the claim is to be allowed. Some guidance as to the appropriate detail which might be provided is described by Richard Douglas SC in an article “Itemisation and Assessment of a Barrister’s Fee Note” appearing in “Hearsay” Issue 48, April 2011, an online publication of the Bar Association of Queensland. The examples referred to in the article include:
To reading (volumes 1-6 of brief, particularly the client file documents which comprise 4 lever arch folders) (7 hours);
Preparation for and conference (1 day):
Preparing for conference with Mr [X] of instructing solicitors and Mr [Y], a witness in the matter, including drafting a series of questions (2 hours);
Attending to meet Mr [X] and Mr [Y] in conference and drafting Mr [Y] witness statements from the conference (6 hours);
Settling opinion on prospects for success for defendant, including review of pleadings and all disclosed documents (6 lever arch) and attending to research on relevant termination issues (2 hours) and editing proposed opinion (2 hours);
Consultation with Mr [X] [Junior Counsel] to review pleadings and settle draft defence and counterclaim, particularly the breach of contract allegations (2 hours);
Telephone attendance upon instructing solicitor re advising on Minister’s consent (30 mins);
Telephone conference with instructing solicitor and client to obtain instructions for preparation of pleading (2 hours).
As has been agreed by both parties, counsel fees for preparation by counsel are to be assessed on a “lump sum” basis. A party seeking a lump sum assessment bears the onus of satisfying the Court that there is sufficient information before the Court to enable it to make a “logical, fair and reasonable” estimate of the costs claim. This does not require the applicant to establish that the parties have produced or are able to produce the same evidence as would be required in an item‑by-item taxation. The lump sum which might be awarded after the parties have been heard will not be a figure which would have been payable on a taxation of costs because the hearing on an such an application is not a taxation, and descending to the level of detail required for a taxation defeats the purpose of lump sum assessment. The task is one of estimation or assessment rather than an arithmetic and the court applies a much broader brush than would be used on a detailed taxation. An “impressionistic” approach is taken. I have considered all the above matters in assessing counsels’ charges for preparation time.
In the case of junior counsel, Clone claims for 33.3 days of preparation relating to the 27-day trial. Of the 46 items comprising preparation time, only 13 have been particularised, and the balance are simply described as “preparation for trial”. Clearly the trial was complex and involved the lengthy and difficult matters referred to by Mr Ericson in his submissions. Adopting a broad brush and impressionistic approach, I consider that a total of 25 days preparation should be allowed in the case of junior counsel. This is slightly less than the trial time taken of 27 days.
In the case of senior counsel, Clone claims for 23 days of preparation for the 27 days of trial. This is to be expected, because as both parties have acknowledged, it is the case that much of the detailed preparation of a matter where there are two counsel will be undertaken by junior counsel. Of the 25 items comprising preparation time, only 4 items have been particularised, and the balance are simply described as “preparation for trial”. Again, adopting a broad brush and impressionistic approach, I consider that a total of 20 days preparation should be allowed in the case of senior counsel.
As indicated earlier in these reasons, I will hear from the parties as to the appropriate daily rate to be allowed to counsel having regard to the fact that preparation would have involved both a reading component on the one hand and a second component for preparation, conferences, settling documents and ancillary attendances, on the other. Judge Withers had determined differential rates for each of these components.
Summary of rulings
1.Clone is awarded the costs of Players’ application relating to the misconduct of counsel issue on a standard costs basis.
2.That application is certified as being fit for senior counsel.
3.Clone is awarded 25 days preparation time for junior counsel and 20 days preparation time for senior counsel.
4.The court will hear submissions from the parties as to the appropriate rate for such preparation time attendances by both counsel.

[2024] SASC 72

29 May 2024