Two Sydney barristers required to reveal their fees in overcharging case against Keddies … Allegations of multiple billing for the same work … Excessive charges and over-servicing
The NSW Court of Appeal has upheld a subpoena for the production of documents revealing the fees charged by Sydney barristers David Campbell SC and Tim Meakes in personal injury settlements conducted in Hong Kong on behalf of clients of Keddies.
Meagher: documents sought will assist testing allegations of breach of dutyOn Tuesday (Jan. 31) Justices Tony Meagher and Reg Barrett turned down Campbell and Meakes application for leave to appeal from a decision of Susan Gibb DCJ.
In September Gibb dismissed an application from the two barristers to set aside each subpoena for the relevant fee information.
The plaintiff, Shao Lan Liu, is suing Keddies partners, Tony Barakat, Russell Keddie and Scott Roulstone, in the District Court.
Her case, along with many others, is being run by Sydney solicitor Stephen Firth.
She alleges that the fees she was charged were grossly excessive and raise issues of breach of duty, deceit, misrepresentation, and false and misleading conduct.
Campbell and Meakes will now be required to produce documents showing their fees for the notorious 2007 Hong Kong sittings of the NSW District Court.
Lawyers for Ms Liu believe that the barristers charged full freight for five clients for whom they did the same work, at the same time, at the same place.
The Court of Appeal also heard that senior counsel charged clients $6,000 as a loading for the first day of hearing.
Martin Einfeld QC, for Campbell and Meakes, said there is no suggestion of duplicate billing in Gibb's judgment and it was not pleaded by Ms Liu. He said the subpoenae were a fishing expedition.
The subpoenae seek information about fees for five other clients whose cases were settled at the "District Court of NSW Hong Kong special sittings".
Einfeld particularly objected to the production of documents related to these other five clients, saying the barristers were not "obliged" to do so as part of the Liu case.
He said that the documents could be used for an "ulterior purpose". Justice Barrett asked: "Isn't that the case for all documents produced?"
Keddies acted for Ms Liu in her claim for damages as a result of injuries in a bus accident. The bus operator's insurer admitted liability.
Evidence was taken on commission in Hong Kong. Without a trial the case was settled for $400,000, all inclusive. Keddies took $250,000 for costs and disbursements and let the client keep $150,000.
Liu pleads that Keddies did not seek her instructions for the case to be conducted on commission in Hong Kong, nor did the partners tell her of the extraordinary additional costs that such a hearing would entail.
Campbell SC: fees under scrutinyIn fact, shortly before the Hong Kong "sittings" the defendant made an offer of $265,000, plus costs. In other words, the plaintiff could have received $115,000 more than the settlement engineered by Keddies in HK.
Liu pleads that $250,000 for costs and disbursement was grossly disproportionate to the true nature of her claim.
It was also unreasonable that counsels' fees came to $42,976.28 for a case that never came on for hearing.
Retaining both senior and junior counsel without telling the plaintiff the terms of the engagement amounts to a breach of the costs agreement.
Liu also says that at the time of the settlement she was misled by Keddies into believing that the insurance company was only paying $150,000.
She adds that she was not told that the total payout was $400,000, of which Keddies was taking $250,000.
Gibb said in her judgment that the fees paid to the barristers, are "directly relevant to matters significantly in issue, under the somewhat mundane heading of 'disbursements'."
"The applicants may be correct to apprehend that subpoenae in similar terms may be issued against them in other proceedings … But that is irrelevant in this context."
Judge Gibb said the documents sought were for a legitimate forensic purpose, and the Court of Appeal agreed with her.
Justice Meagher said the documents would assist in relation to the allegation of breach of duty and misleading and deceptive conduct that had been levelled against the Keddies partners.
Justice Barrett said that the documents had the capacity to throw light on excessive disbursements and allegations of duplicate charging.
Ouch.