A successful party in litigation who is represented on a
pro bono basis can be awarded costs.
A decision of the Victorian Court of Appeal has clarified the
issue of whether a successful party in litigation who is
represented on a pro bono basis can be awarded costs.
The Court's decision in Mainieri v Cirillo  VSCA 227
confirms the entitlement to such a costs award, giving much needed
certainty to a previously grey issue in pro bono
Clayton Utz and Dr John Glover of Counsel represented Mrs Rita
Cirillo on a pro bono basis.
The client and the fee arrangement
Mrs Cirillo had sold her home and contributed the proceeds
towards her son's mortgage. Her son had agreed that Mrs Cirillo
could live with him indefinitely and that he would take care of
When the relationship between mother and son broke down, the son
claimed that the money was a gift and that he had no obligation to
repay it. The Victorian Court of Appeal held that Mrs Cirillo was
entitled to an equitable lien or charge over the property, to
secure repayment of her money with interest.
The relevant terms of engagement stated that Mrs Cirillo would
only be issued with a bill for her lawyers' professional time
if the Court made an order for costs in her favour. Mrs
Cirillo's liability to pay was contingent on a costs order
Contingent obligation to pay costs OK under the Legal
The Victorian Court of Appeal unanimously adopted the views of
Justice Santow in the NSW Court of Appeal decision of Wentworth v
Rogers  NSWCA 145; (2006) 66 NSWLR 474.
In that judgment, Justice Santow recognised the availability
under the NSW Legal Profession Act of a costs agreement clause
which makes the obligation to pay contingent upon an award of
costs, and expressly rejected the contrary position of the
Queensland Court of Appeal in King v King  QCA 31 (the NSW
Act is in similar terms to the Victorian Act).
It clarified the previously uncertain question of whether a
contingent liability to pay costs is sufficient for the purposes of
the indemnity principle.
Benefits of this decision for pro bono
Costs are rarely awarded in pro bono matters. However the risk
of having to pay costs if unsuccessful, incentivises the other
party to behave prudently during litigation and to take a proper
commercial perspective about settlement. They do not receive a free
kick, because their opponent has a pro bono lawyer.
An unsuccessful pro bono client will be liable to pay an adverse
costs order. It is only fair that if the other party forces a
matter to proceed all the way to hearing and determination by a
Court, that they face the same exposure to the risk of paying legal
costs to the pro bono party when they lose.
Of course, there still must be a costs agreement which says that
a client is liable to pay costs, contingent on an award being
What distinguishes the modern pro bono arrangement is that the
lawyer has no expectation or commercial calculation of ultimately
being paid for their work. If a matter may be settled without
progressing to a final determination, and the low-income or
disadvantaged client will receive the entirety of the settlement
sum, so much the better.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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