Friday, April 4, 2014

Arguing a lawyers bill is reasonable when seeking costs does not bar a later assessment of that account as unreasonable

Ghaeinizadeh v. Bennett Jones LLP, 2014 ONCA 267 is yet another case showing lawyers ought not to argue an assessment is unavailable - generally speaking the client can always assess:

[23]       The issue in this case is whether that holding applies where the client has submitted in the previous court for the purpose of obtaining costs from the defendants that the accounts of their previous solicitor were reasonable. In my view, it does. While abuse of process is a broad doctrine, it is important that it not be stretched beyond the core interests of protecting the integrity of the adjudicative functions of the courts. As explained in Bosanac, because of the different interests engaged, the integrity of the decision-making process is not undermined by a subsequent assessment of the solicitor's account. A client's submission that the solicitor's account was reasonable for the purpose of party and party costs is not a concession that the account was reasonable in the different context of assessment between solicitor and client.  Not only do the two contexts engage unique interests and considerations, the amounts in question invariably differ: even where costs are ordered on a substantial indemnity basis, they will rarely if ever reach the amount clients must pay their own solicitor. And as this court pointed out at para. 5 of Bosanac, if the assessment reduces the fees below what was ordered by the trial court, the client could be obligated to refund some of the amount that had been paid as a result of the party and party costs order.

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