{"id":267,"date":"2015-07-30T06:40:14","date_gmt":"2015-07-30T06:40:14","guid":{"rendered":"http:\/\/helencarter.com.au\/?p=267"},"modified":"2016-01-14T22:53:50","modified_gmt":"2016-01-14T22:53:50","slug":"litigation-what-are-the-real-costs","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=267","title":{"rendered":"Litigation – what are the real costs?"},"content":{"rendered":"

News that Joe Hockey was unsuccessful in his costs dispute<\/a> with Fairfax was even\u00a0more keenly reported<\/a> than the defamation judgment itself. \u00a0Some reports<\/a> indicate that Hockey has spent close to $800,000 on legal fees, leaving him half a million out of pocket once he receives his damages, interest and the 15% or ordinary costs awarded. \u00a0Some commentators have suggested that this is an example of the financial barriers to obtaining\u00a0justice through litigation – the idea that the very real risk of being worse off overall even if you win the substantive hearing is a disincentive to litigate, and thus an impediment to justice.<\/p>\n

But this misses the point altogether. \u00a0A costs order is generally the final stage of any dispute. \u00a0For most people, the financial realities of access to justice is a brick wall they face right from the beginning. \u00a0Whether or not a costs order is awarded has no impact on the fact that litigants need to find a way to fund their case from day one. \u00a0 The issue is not whether you are prepared to risk your $800,000 on litigation as Joe Hockey has, it is whether or not you can actually get your hands on the money in the first place. \u00a0 Despite commonly held misconceptions, very few legal practitioners in Australia are able\u00a0to operate on a no win – no fee basis, and those that do are in the specific areas of law where an outcome can be predicted by the practitioner before\u00a0very little work has been done. Law firms also are generally unable\u00a0to fund litigation themselves, as the chances of getting paid if you lose are virtually\u00a0nil. \u00a0Like other businesses, law firms have an obligation to pay wages and salaries as they fall due. \u00a0 \u00a0Pro bono work is common, but other than by very large firms it simply cannot be done for complex litigation. \u00a0 The reality is that if you haven’t got access to the cash, you can’t afford the justice. \u00a0Often, it comes down to what assets you are able to borrow against, or what friends and family you can lean on. \u00a0Many valid and strong cases are discontinued every day because one of the parties is unable to raise\u00a0the necessary finances, and sadly, often the opposing\u00a0party are acutely aware that this is the case, which significantly\u00a0informs their strategy and strengthens their position.<\/p>\n

This is further complicated by the fact that the legal jurisdictions most commonly accessed\u00a0by those with limited financial resources\u00a0are often non-costs jurisdictions in any case, such as the Fair Work Commission and NSW\u00a0Civil and Administrative Tribunal. \u00a0Only in exceptional circumstances will an order be made by these tribunals\u00a0allowing\u00a0a successful party to recover their costs. \u00a0These litigants not only face uncertainty over whether they will win their case, but have to perform a\u00a0delicate balancing act of determining\u00a0if the value of a claim outweighs the costs of asserting it.<\/p>\n

Meanwhile, the costs of the Commonwealth’s case against Philip Morris over the plain packaging of cigarettes is set to reach $50 million of our tax dollars.<\/a> \u00a0 It’s not often that we see the Commonwealth as the underdog in litigation, but it seems as if the school yard bully has finally\u00a0met its match. \u00a0The Commonwealth\u00a0clearly values its\u00a0laws relating to plain packaging of cigarettes, but with the benefit of hindsight it’s arguable that this money would\u00a0have been better\u00a0spent \u00a0directly on other measures to combat smoking. \u00a0Most frighteningly, Big Tobacco have obviously done their calculations. \u00a0Their costs so far are difficult to estimate, but we can assume that they consider\u00a0their financial interest in branded packaging\u00a0is worth the full extent of their legal muscle. \u00a0We can only guess at how big that interest is.<\/p>\n

It’s great to see that at least some\u00a0of us get\u00a0to have our\u00a0day in court.<\/p>\n

 <\/p>\n

* Helen Carter is the Director and founding solicitor\u00a0at PCC Lawyers<\/a>,\u00a0a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training. \u00a0They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

News that Joe Hockey was unsuccessful in his costs dispute with Fairfax was even\u00a0more keenly reported than the defamation judgment itself. \u00a0Some reports indicate that Hockey has spent close to $800,000 on legal fees, leaving him half a million out of pocket once he receives his damages, interest and the 15% or ordinary costs awarded. […]<\/p>\n","protected":false},"author":21,"featured_media":270,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[236],"tags":[62,61,63],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/267"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/21"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=267"}],"version-history":[{"count":12,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/267\/revisions"}],"predecessor-version":[{"id":281,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/267\/revisions\/281"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/media\/270"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=267"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=267"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=267"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}