New South Wales Consolidated Acts New South Wales Consolidated Acts
(1) In this Schedule--
"defendant" means a person against whom a claim for personal injury damages is or may be made.
"party" means plaintiff or defendant.
"personal injury damages" has the same meaning as in Part 2 of the Civil Liability Act 2002 .
"plaintiff" means a person who makes or is entitled to make a claim for personal injury damages.
(2) This Schedule does not apply to the following costs--(a) costs for legal services provided in respect of a claim under the Motor Accidents Act 1988 or Motor Accidents Compensation Act 1999 ,(b) costs for legal services provided in respect of a claim for work injury damages (as defined in the Workplace Injury Management and Workers Compensation Act 1998 ),(c) costs for legal services provided in respect of a claim for damages in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989 .
(1) If the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a party in connection with the claim are fixed as follows--(a) in the case of legal services provided to a plaintiff--maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater,(b) in the case of legal services provided to a defendant--maximum costs are fixed at 20% of the amount sought to be recovered by the plaintiff or $10,000, whichever is greater.
(2) The local regulations may prescribe an amount to replace the amount of $100,000 or $10,000 in subclause (1) and may prescribe a percentage to replace the percentage of 20% in subclause (1). When such a replacement amount or percentage is prescribed, it applies for the purposes of subclause (1) in place of the amount or percentage that it replaces.
(3) The local regulations may contain provisions of a savings or transitional nature consequent on the making of regulations under this clause.
(4) When the maximum costs for legal services provided to a party are fixed by this Schedule the following provisions apply (subject to clauses 4-6)--(a) a law practice is not entitled to be paid or recover for those legal services an amount that exceeds those maximum costs,(b) a court or tribunal cannot order the payment by another party to the claim of costs in respect of those legal services in an amount that exceeds that maximum,(c) in assessing the amount of those costs that is a fair and reasonable amount, a costs assessor cannot determine an amount that exceeds the maximum set by this clause.
(5) In this Schedule--(a) a reference to legal services provided to a party is a reference to legal services provided to the party by a law practice (including by an associate of the law practice), and(b) a reference to costs for legal services does not include costs charged as disbursements for services provided by any other person or other disbursements.
(6) If proceedings are commenced on a claim, the amount sought to be recovered by the plaintiff is taken to be the amount sought to be proved by the plaintiff at the hearing of the claim.
(7) Maximum costs fixed by this Schedule apply despite local regulations under section 59(1)(b) fixing those costs.
(1) This clause applies to a claim for personal injury damages in respect of which the amount recovered does not exceed $100,000 that is made by proceedings heard by the District Court.
(2) If the District Court has referred the proceedings to arbitration and, following the arbitration, made an order for a full or limited rehearing of the proceedings concerned on the application of a party, the maximum costs fixed by this Schedule for legal services provided in connection with the claim to the other party are increased by the additional amount.
(3) If the decision of the District Court in respect of a claim is the subject of an appeal, the maximum costs fixed by this Schedule for legal services provided in connection with the claim to the party who is the respondent to the appeal are increased by the additional amount or, if subclause (2) also applies to legal services provided to the respondent, by 2 times the additional amount.
(4) For the purposes of this section, the
"additional amount" is--(a) in the case of legal services provided to the plaintiff--15% of the amount recovered, or $7,500, whichever is the greater, and(b) in the case of legal services provided to the defendant--15% of the amount sought to be recovered by the plaintiff, or $7,500, whichever is the greater.
(5) The local regulations may prescribe a percentage to replace the percentage of 15% in subclause (4) and may prescribe an amount to replace the amount of $7,500 in subclause (4). When such a replacement percentage or amount is prescribed, it applies for the purposes of subclause (4) in place of the percentage or amount that it replaces.
(6) The local regulations may contain provisions of a savings or transitional nature consequent on the making of regulations under this clause.
(1) This Schedule does not apply to the recovery of costs payable as between a law practice and the practice's client to the extent that recovery of those costs is provided for by a costs agreement that complies with Division 4 of Part 4.3 of the Legal Profession Uniform Law (NSW) .
(2) The local regulations may make provision for or with respect to requiring disclosure by a law practice to the practice's client of information in relation to the effect of a costs agreement in connection with the operation of this Schedule.
(3) The local regulations may provide that a failure by a law practice to comply with the requirements of the local regulations under this clause disentitles the law practice to the benefit of this clause, and in such a case this Schedule applies in respect of the claim concerned despite the terms of any costs agreement.
(1) If a party to a claim for personal injury damages makes a reasonable offer of compromise on the claim that is not accepted, this Schedule does not prevent the awarding of costs against another party to be assessed on an indemnity basis in respect of legal services provided after the offer is made.
(2) An offer of compromise on a claim by a party is reasonable if the court determines or makes an order or award on the claim in terms that are no less favourable to the party than the terms of the offer.
(3) The local regulations may make provision for or with respect to requiring disclosure by a law practice to the practice's client of information in relation to the operation of this clause in respect of any refusal by the client to accept an offer of compromise.
(4) If it appears to the court in which proceedings are taken on a claim for personal injury damages that a law practice has failed to comply with any provision of the local regulations under this clause, and that the client of the practice has incurred an increased liability for costs as a result of refusing a reasonable offer of compromise in connection with the claim concerned, the court may of its own motion or on the application of the client make either or both of the following orders--(a) an order directing the law practice to repay to the client the whole or any part of those increased costs that the client has been ordered to pay to any other party,(b) an order directing the law practice to indemnify any party other than the client against the whole or any part of the costs payable by the party indemnified in respect of legal services provided after the offer is refused.
A court hearing a claim for personal injury damages may by order exclude from the operation of this Schedule legal services provided to a party to the claim if the court is satisfied that the legal services were provided in response to any action on the claim by or on behalf of the other party to the claim that in the circumstances was not reasonably necessary for the advancement of that party's case or was intended or reasonably likely to unnecessarily delay or complicate determination of the claim.
(1) If more than one law practice provides legal services to a party in connection with a claim, the maximum costs fixed by this Schedule are to be apportioned between them as agreed by them or (failing agreement) as ordered by the court hearing proceedings on the claim.Note : For example, this provision would apply in relation to the provision of legal services by both a firm of solicitors and a barrister.
(2) The maximum then applicable to a particular law practice is the law practice's apportioned share of those maximum costs.
(1) A reference in this Schedule to the amount recovered on a claim includes any amount paid under a compromise or settlement of the claim (whether or not legal proceedings have been instituted).
(2) In determining the amount recovered on a claim for personal injury damages, no regard is to be had to any part of the amount recovered that is attributable to costs or to the addition of interest.