Hegarty v Keogh (No 2)

This case concerned an appeal by the appellant, Hegarty, against an order made by a Master regarding the respondent's, Keogh's, costs of an action. The dispute arose from a contingency costs agreement, described as a "no win – no fee" arrangement, entered into between the appellant and the respondent, who was a solicitor.

The legal issues before the court included the extent to which maintenance is permissible in South Australia, the common law requirements for a contingency costs agreement in Australia, and whether such an agreement is permissible in a criminal matter. The court also considered the necessity for a solicitor to provide considered advice to a client about costs under a retainer, a requirement that predates statutory provisions like s 42(6) of the Act.

The court reasoned that while maintenance and champerty were historically unlawful, modern attitudes have seen considerable relaxation, particularly following the High Court's decision in *Campbells Cash & Carry Pty Ltd v Fostif*. This decision recognised the lawfulness of litigation funders sharing in a client's award for profit, indicating that such arrangements are not necessarily contrary to public policy or an abuse of process. The court noted that there was no suggestion of a written retainer conforming to s 42(6) of the Act or that the appellant received advice regarding the draft contingency costs agreement.

Ultimately, the appeal was dismissed, and leave to appeal the costs order was refused. The appellant was ordered to pay the respondent's costs of the appeal.