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The Cost of Access to Courts

Dr Peter Cashman, Confidence in the Courts conference, 9–11 February 2007

Contents
1. The source of present concerns about the cost of access to the courts.

2. Recent developments in other jurisdictions, including the move towards greater
proportionality and determinacy of legal costs.
    2.1 The Woolf reforms
    2.2 The filing of cost estimates and budgets
    2.3 The proposed establishment of a Costs Council
    2.4 The concept of proportionality
    2.5 The indemnity principle
    2.6 Fixed costs and capping of costs
    2.7 The gap between lawyers’ costs and the costs recovered from the losing party
    2.8 Recent NSW legal fees review
    2.9 British Columbia civil review task force
    2.10 Manitoba Law Reform Commission report
    2.11 New Zealand
    2.12 Hong Kong
    2.13 Germany
    2.14 Costs and the adversary system
    2.15 Costs and the overriding objective of civil procedural rules

3. The apparent failure to control costs in England and Wales in the aftermath of the
Woolf reforms.

4. The calculation and assessment of costs.
    4.1 The law governing fee and retainer arrangements for the conduct of civil
litigation
    4.2 Principles governing the taxation of costs in Victoria
    4.3 Methods of calculating/assessing costs in Victoria
    4.4 The current Victorian review of costs
    4.5 The current Victorian review of taxation of costs
    4.6 Problems with open ended and indeterminate legal fees and expenses
        4.6.1 The tyranny of the billable hour
        4.6.2 Out of pocket expenses and disbursements
    4.7 Court fees and charges

5. Costs in ‘public interest’ litigation.

6. Costs in class action litigation

7. Confidence in the courts and the problematic nature of civil justice reform

Appendix: Summary of submissions to VLRC on costs

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Author:	Dr Peter Cashman
Place of Publication:	Melbourne
Publisher:	Victorian Law Reform Commission
Date of Publication:	10 February 2007
Number of Pages:	94
Copyright:	Victorian Law Reform Commission, 2007