The very reason that you seek the assistance of a personal injury lawyer is to maximise your compensation payment, not to incur legal costs. So it is important that you understand a little about legal costs.
"Party/Party Costs" are the costs which the party liable to pay your compensation must pay you.
Upon the ICWA admitting liability, either in whole or in part, they are also admitting to pay you, upon finalisation of your claim, the Party/Party costs, should you engage a lawyer to act for you.
You will not be entitled to be paid any Party/Party legal costs if you do not engage a lawyer.
The amount of Party/Party costs to which you will be entitled depends on a number of factors, the most important of which is the amount of work your lawyer was required to undertake.
Obviously the amount of Party/Party costs will depend on whether your claim is settled at an early stage or late stage.
Who determines how much Party/Party costs I am entitled to?
These costs are governed by a scale called "The Supreme Court Scale". In the event that your claim is settled at a Settlement Conference, or at a Pre-trial Conference, the settlement will include a component for Party/Party costs. This is negotiated between your Lawyer and the ICWA.
Sometimes, the offer the ICWA makes to settle your claim may be acceptable, but their offer in respect of the amount of Party/Party costs they are prepared to pay is not.
In such a case it is usual for your lawyer to ask an officer of the District Court - called a taxing officer, to "tax" the Party/Party costs. This means that he will determine the amount of Party/Party costs the ICWA should pay you having regard to the Supreme Court Scale, the complexity of the case, the time spent by your Lawyer, his expertise etc.
In by far the majority of cases, however the amount of Party/Party costs is agreed to at settlement.
"Solicitor/Client Costs" are the costs payable by you to your lawyer.
In Western Australia, a Lawyer cannot charge you on a different basis than the Supreme Court Scale.
As with Party/Party costs the amount will depend upon a number of factors including - the amount of work undertaken, the experience and expertise of the lawyer carrying out the work, the complexity of the issues etc.
Whilst both Party/Party costs (the costs you receive if you are entitled to compensation) and Solicitor/Client costs (the costs you must pay your solicitor) are both based on the Supreme Court Scale, it is usual that Solicitor/Client costs will exceed Party/Party costs. This is usually because your Lawyer will undertake some work, which is reasonable or necessary to carry out, but which would not be allowable if claimed against the ICWA.
During the course of your claim we may have to incur some out of pocket expenses (disbursements) on your behalf. The most significant of these disbursements is usually obtaining a medico-legal report from a specialist. In the vast majority of cases, these disbursements are paid by the ICWA at the settlement of the claim. In the event that disbursements are incurred and the ICWA do not reimburse them, or any part of them, then they are payable by you out of the proceeds of the settlement. We do not however, require to be reimbursed these disbursements in the event that there are insufficient funds following the settlement.
Similarly, any legal costs payable by you are payable only at the finalisation of your claim, and then, only from the proceeds of any settlement. In the event that there are insufficient funds from settlement to pay our legal fees, we shall waive our fees to the extent that they exceed the available funds.
As a result of the above, you will only be required to pay our legal fees and disbursements out of the proceeds of your claim.
Should your claim not result in the negotiating of a settlement of your claim, you may wish to instruct us to institute legal proceedings and have your claim proceed toward a trial. Prior to this, we will advise you of the terms and conditions upon which we shall act for you. We shall also advise you of the implications of such an action. One of these implications is that once legal proceedings are commenced, you are exposed to possible orders from the court regarding the payment of other parties legal costs in certain circumstances. For instance, a person who proceeds to trial and is not successful is usually ordered to pay the other parties legal costs. Further a person who proceeds to trial and fails to obtain an order for damages in excess of a previous offer made to settle the action, is also usually ordered to pay the other parties legal costs from the date of such an offer. Prior to being retained to commence proceedings, therefore, we would fully advise you of the full implications of these issues.