Staying Within Budget: The Consequences of Deviating from Approved Costs in Litigation

Perth Costs Lawyer Richard Graham

The role of cost budgeting in modern litigation has gained significant attention in recent years, in light of the Lord Jackson Report and the subsequent reforms in the UK.

The report, which was published in 2010, emphasized the need for greater transparency and predictability in legal costs.

As a result of the report, the UK introduced a number of measures to promote cost budgeting, including:
1️⃣ mandatory cost budgeting in more complex legal matters, and
2️⃣ the requirement for parties to file cost budgets at various stages of the litigation process.

Once the cost budget is approved by the judge, it serves as a guideline and a benchmark for the parties to follow throughout the litigation process.

The judge will review and approve the budgets at various stages of the litigation.

Deviations from the approved budget may be subject to scrutiny.

If a party exceeds their approved budget without good cause, they may have their costs limited to the budgeted amount in the event that they succeed at trial and costs are awarded to them.

For example, imagine a case where a plaintiff is suing for breach of contract.

The plaintiff's legal team prepared a detailed cost budget, outlining all of the expenses they anticipate incurring over the course of the litigation. After reviewing the budget, the judge approves it as reasonable and proportionate.

Throughout the litigation, the company's lawyers are not diligent in keeping their expenses within the approved budget.

After the trial, the judge awards costs to the plaintiff, but limits the sum to the amount budgeted, rather than the actual expenses incurred.

As a result, the out-of-pocket legal costs exceed the damages awarded for breach of contract, and it was a pointless exercise to have commenced the litigation. ▶ It cost more than was gained.

The process of costs budgeting serves as a powerful incentive for both parties to stay within their budget and to be mindful of the costs of their actions. Any deviation from the approved budget could result in significant financial consequences. Not to mention embarrassment for the lawyers involved.

This serves as a powerful incentive for parties to stay within their budget and to be mindful of the costs of their actions.

Additionally, it also helps to ensure that the litigation remains fair and proportionate, with the costs of the proceedings being proportionate to the amount in dispute.

While these reforms have not yet been implemented in Australia, it seems inevitable cost budgeting will be introduced to our legal system at some stage.

Revolutionizing Legal Costs: The Impact of AI in 2023

Perth Costs Lawyer Richard Graham

In my legal costs work, I see big changes coming with AI during 2023.

Doing this work, I am closely involved in drafting bills of costs and negotiating party-party costs for clients. This includes where I am retained by other lawyers to deal with the costs side of things after a hearing or trial.

With the advent of AI, many of the tasks associated with this work are becoming more efficient and automated, with the use of AI-powered e-billing software.

AI-powered e-billing software can automatically review and analyze legal bills, highlighting any potential overcharges or discrepancies.

This can significantly improve the accuracy and speed of cost assessments, making the process more efficient for both the lawyer and the client.

It can also assist in identifying patterns, trends, and outliers in billing data which can help negotiate costs.

One real-world example of this is the use of AI-powered e-billing software in identifying and flagging overcharges.

AI presents a big opportunity for costs lawyers to adapt and evolve our skills to stay ahead of the curve. Costs disputes have traditionally been maddeningly costly (pardon the pun), driving the ultimate client to despair after having already spent so much on the actual case. This is about to change big-time.

AI-powered e-billing software is the biggest advance in costs for decades and we have only scratched the surface.

Understanding defamation: What makes a statement defamatory?

Perth Defamation Lawyer Richard Graham

A simple explanation of what makes something defamatory ... does it make people (a) think less of the person it is about, or, (b) make people want to avoid that person.

It's not necessary for the statement to say that the person is bad, but if it says that they are not good at their job or lack qualifications, that is enough.

An example is if someone says "X is a nice person but can't do surgery well" about a surgeon, it would be damaging to their reputation because it affects their profession, but if someone says the exact same words about a person who isn't a surgeon (perhaps, for example, where it turns out the person is actually a plumber), it wouldn't be considered defamatory.

The Link Between Duels and Defamation

Perth Defamation Lawyer Richard Graham

Let's duel at dawn! ... The history of defamation takes most people by surprise, but makes sense when you work as a defamation lawyer.

Doing this job, you come to realise that it's not so much about money for the injured party. It's about their reputation being vindicated.

The evolution of how society deals with false statements that damages a person's reputation has many twists and turns. But one linkage is especially thought-provoking.

In the past, the duel was seen as a way to restore a person's honour if it was believed that their reputation had been damaged by false statements.

As society progressed, the use of duels as a means of resolving defamation cases was phased out and replaced with more legal forms of redress.

In 1613, King James I issued a royal edict against duelling, and this was reinforced by a Star Chamber decree in the following year.

From that point on, courts waged a continuous hostility to the duel in all its forms. They refused to regard it as in any way an affair of honour, but held it to be an unlawful assembly in an aggravated form.

The creation of the tort of written defamation was a way to address non-political, non-criminal libels.

It was a solution to the question of how to restrain these types of libels, when the vindication of the duel was no longer an option.

We often overlook the historical context of our laws, as we navigate a rapidly-changing landscape. But it helps to better understand human nature, if we learn about where our laws have come from.

The Importance of Properly Evaluating Mental Capacity in Legal Matters

There is no single legal definition of mental capacity in Western Australia. As a lawyer specializing in guardianship cases, this question is frequently top-of-mind when dealing with some of my clients.

It is important to understand the nuances of determining mental capacity in legal matters. The definition varies depending on the type of decision or transaction involved.

There are various legal tests for mental capacity, such as the test for testamentary capacity.

Despite the many different legal tests, the fundamental issue is whether the client is able to understand the general nature of what they are doing. If there is ongoing difficulty in this level of understanding it may indicate a lack of mental capacity which requires further exploration by the lawyer.

Any work done for a client who it later turns out lacked mental capacity could be invalid and expose the lawyer to potential legal and ethical issues.

For example, a client may appear to have the mental capacity to create a will, but in reality, they may be suffering from dementia and unable to understand the consequences of their actions. This could lead to the will being challenged and the lawyer facing potential legal repercussions.

Another example is, a client may not have the mental capacity to make a contract, but have mental capacity to make a will. A lawyer should be aware of this and should not proceed with the contract if they suspect the client lacks mental capacity. If a lawyer fails to do so, it could lead to the contract being challenged and the lawyer facing potential legal repercussions.

See a publication produced by The Law Society of New South Wales entitled “When a client’s mental capacity is in doubt – A practical guide for solicitors”, dated 2016" for more information.

Compensating for Injury to Feelings: A Standard Part of Defamation Damages

Perth Defamation Lawyer Richard Graham

Many people are surprised to learn that damages for injury to feelings can be awarded in defamation cases. In addition to protecting one's reputation, the tort of defamation also recognizes the harm caused by hurt feelings.

Lord Diplock stated, "The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him."

An award for injury to feelings is a standard part of compensatory damages. Additionally, if the defendant's conduct has exacerbated the plaintiff's injury, they may also be entitled to "aggravated damages." It's important to note that corporations cannot claim injury to feelings.

It's possible for a plaintiff to prove injury to reputation by showing they have been "shunned and avoided" by others as a result of the defamatory statement. BUT, such evidence can also demonstrate substantial hurt to the plaintiff's feelings. 

Why Clients Should Ask About a Lawyer's Experience Before Hiring

Perth Lawyer Richard Graham

Why Clients Don't Ask Lawyers About Their Experience Before Hiring Them:

When it comes to hiring a lawyer, many clients assume that all lawyers are created equal. They trust in the reputation of the law firm and assume that any lawyer from the firm will be competent.

However, this is not always the case, and clients can be taken by surprise when a relatively junior lawyer, with little experience in the subject matter, is handling their case.

Here are some reasons why this happens to clients:

1. Lack of knowledge or understanding about the legal process: Many clients may not fully understand how the legal process works and may not know what questions to ask.

2. Trust in the law firm's reputation: Clients may trust in the reputation of the law firm and assume that any lawyer from the firm will be competent.

3. A belief that more experienced lawyers will oversee and guide the junior lawyers: Clients may assume that more experienced lawyers will oversee and guide the work of the junior lawyers, so they don't ask about the experience of the specific lawyer handling their case.

4. Lack of time or resources to research and compare different lawyers: Clients may not have the time or resources to research and compare different lawyers or law firms.

5. A belief that all lawyers have the same level of expertise and experience: Clients may assume that all lawyers have the same level of expertise and experience, so they don't ask about the experience of the specific lawyer handling their case.

6. Being referred by someone they trust: Clients may be referred to a law firm by someone they trust, and may not feel the need to ask further questions.

7. Being in a difficult or emotional state: Clients may be in a difficult or emotional state and may not think clearly about the hiring process.

8. Not wanting to appear rude or difficult: Clients may not want to appear rude or difficult by asking too many questions.

9. Cost of hiring a lawyer: Clients may assume that the cheapest option is the best option, and may not ask about the experience of the specific lawyer handling their case.

10. Not wanting to take the time to interview multiple lawyers: Clients may not want to take the time to interview multiple lawyers and compare them.

It's important for clients to understand that not all lawyers have the same level of expertise and experience. Before hiring a lawyer, it's essential to ask about their experience and qualifications and research different options.

Even just to ask their first-point-of-contact at the firm (who is often just a 'white label'), "Who will be my actual lawyer? Will you just be supervising that person? How many of this type of case has that lawyer handled during the last 5 years? Can you send me any published cases in which they acted?"

These are essential questions in an era of high settlement. These days even many independent barristers have never done a trial as lead counsel. Without doing due diligence, clients can be surprised the actual lawyer handling their case might be an "L Plater" in the particular area of the law.

Remember the adage, "... the more you know".

Navigating Guardianship Applications: Some “signs” for Families Affected by Dementia

perth dementia lawyer

GUARDIANSHIP ... it is important to be aware of the early signs of dementia and the difference between dementia and Alzheimer's disease.

Dementia is the term used to describe losing one's memory and speech, with Alzheimer's disease being the most common cause.

In the early stages, it may appear as exaggerated forgetfulness, but as the disease progresses, memory loss, changes in thinking and speech, and changes in behavior may occur.

Other diseases that can cause dementia include vascular dementia, caused by small strokes, and Lewy body disease, which also presents symptoms similar to Parkinson's disease.

Although dementia is not hereditary, an early diagnosis is important as there are treatments that can be offered and it is important to prepare for the future.

Keep an eye out for extraordinary forgetfulness and out of character behaviour, such as putting food in the wrong place or tripping over words in conversation.

If you notice these signs, encourage your family members to seek medical attention for a proper diagnosis.

If you or someone you know needs help applying for or dealing with a guardianship application at the State Administrative Tribunal of Western Australia, please don't hesitate to contact me for assistance. I'm here to help, having acted in more than 100 such applications during the last 5 years.

Lawyers of the Future: How AI and AVR are Transforming the Junior Lawyers' Tasks and Costs

Perth Lawyer Richard Graham

As technology continues to advance, the legal industry is also evolving. Artificial Intelligence (AI) and Automatic Voice Recognition (AVR) are becoming increasingly prevalent in the field and are changing the way junior lawyers work.

In this blog post, I take a closer look at how AI and AVR can assist junior lawyers in their daily tasks and how they can free up time for more important and value-adding tasks. Moreover, I will examine how these technology can help to reduce costs and increase access to justice.

To begin, let's take a look at a breakdown of tasks that a typical 40 hour workweek for a junior lawyer doing litigation might look like, with an estimate of how many of those hours could potentially be done by AI, specifically natural language processing models, with the assistance of an operator and how many hours could be done by Automatic Voice Recognition (AVR):

It's important to note that this is just an estimate based on my analysis and not a scientific study.

This analysis is drawn from my common sense analysis and my tech knowledge and insights over the last few months and my many years of being, working with, supervising and employing junior lawyers.

As we can see from this table, AI can assist junior lawyers in tasks such as legal research, document review, and contract drafting.

These tasks are typically time-consuming for junior lawyers, but with the help of AI, they can be done more efficiently and accurately.

This can free up 22 hours a week for more important and value-adding tasks.

AVR can also play a major role in the legal field, by transcribing audio recordings of meetings and hearings, which can be a time-consuming task for junior lawyers, to sit in meetings making notes.

This could save an additional 2 hours a week, allowing junior lawyers to focus on more important and value-adding tasks such as analysis and decision making.

The benefits of AI and AVR go beyond just saving time, they also have the potential to reduce costs and increase access to justice for clients in dramatic ways.

High legal costs can be a barrier to justice for many individuals and businesses.

By using AI to efficiently complete tasks such as legal research, document review, and contract drafting, and AVR for transcribing audio recordings, legal professionals can help to make the legal process more efficient and affordable, which can increase access to justice for many people.

While these technologies are not meant to replace human judgement, they are designed to assist and make the legal process more efficient. This means that junior lawyers will have more time to focus on higher-level tasks and provide better service to clients.

As the legal industry continues to evolve, it's important for junior lawyers to be aware of the advancements in technology and to embrace the opportunities they provide.

With AI and AVR, we can work smarter, not harder, and provide even better service to our clients while also helping to reduce costs and increase access to justice.

It's an exciting time for the legal industry and I can't wait to see how these technologies will continue to shape and improve the way we work.

What are the consequences of being a publisher of defamatory third party comments on social media?

Perth Defamation Lawyer Richard Graham

DEFAMATION ... In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 the High Court affirmed traditional concepts of what a 'publisher' is in defamation law (in the context of social media).

1. The media companies Fairfax Media Publications, Nationwide News, and Australian News Channel were held liable for defamation as publishers of third party comments made on their public Facebook pages.

2. The High Court of Australia determined that liability as a publisher does not require knowledge of the defamatory matter and that any act of participation in the communication of defamatory matter to a third party is sufficient to render a person a publisher.

3. Importantly, the Court found that the degree of active and voluntary participation is irrelevant, provided that some kind of involvement can be proved.

4. The media companies were held liable for defamation as publishers of the defamatory third party comments because they actively and voluntarily participated in the process of making the comments available for comprehension by a third party.

If you have been a victim of defamation on social media, feel welcome to contact me to discuss your options.