SPECULATIVE FEE AGREEMENT

Transcription

1 SPECULATIVE FEE AGREEMENT 1. Definitions. In this agreement, the following expressions have the meanings respectively assigned to them: 1.1 the senior counsel means Anthony Morris Q.C. of T. J. Ryan Chambers, 13 th level, 239 George Street, Brisbane. 1.2 the solicitor means the solicitor or firm of solicitors referred to item 1 of the schedule. 1.3 the client means the person or entity referred to item 2 of the schedule and, if more than one person or entity is referred to item 2 of the schedule, means all of them jointly and each of them severally. 1.4 junior counsel means a barrister, other than a Queen s Counsel or Senior Counsel, duly admitted and qualified to practise in the relevant jurisdiction, and practising as a member of an independent bar, and also includes a Queen s Counsel or Senior Counsel who has agreed to accept instructions as junior to the senior counsel in a particular matter. 1.5 proceeding means any proceeding in a court or tribunal, or any arbitration. 1.6 ADR means any arbitration, mediation, or other alternative dispute resolution process, and includes settlement conferences and other settlement negotiations. 1.7 the speculative proceeding means the proceeding commenced or intended or proposed to be commenced by the solicitors on behalf of the client, as described in item 3 of the schedule, and includes: (a) any separate cause of action comprised in the speculative proceeding; (b) any matter which has been or may be in issue in the speculative proceeding, including any counter-claim, cross-claim, set-off, or the like; (c) the trial of, any application in relation to, and any ADR in respect of the speculative proceeding or any issue in the speculative proceeding; and (d) subject to clause 10, any appeal in respect of the speculative proceeding. 1.8 the relevant jurisdiction means Queensland or, if the speculative proceeding is or is to be commenced in another jurisdiction, that other jurisdiction. 1.9 appeal means any proceeding by way of appeal from, challenge to or review of the outcome of the speculative proceeding (or any aspect of the speculative proceeding) at trial, or any settlement of the speculative proceeding, regardless of whether the appeal, challenge or review is in the nature of an appeal stricto sensu, and also includes an appeal in respect of an application trial means a final hearing at first instance before a court, tribunal or arbitrator, for a determination of the speculative proceeding, or any issue in the speculative proceeding, on the merits application means an interlocutory application or other hearing in connection with the speculative proceeding apart from a trial or an appeal conference means any meeting relating to the speculative proceeding, attended by the senior counsel and one or more of the following: (a) the solicitor; (b) junior counsel; (c) the client or a representative of the client; (d) a witness or potential witness (including an expert witness) in the speculative proceeding document means any paper-writing prepared for the purposes of or in connection with the speculative proceeding, and includes: (a) any pleading used or intended to be used in the speculative proceeding, or any document in the nature of a pleading so used or intended so to be used; (b) any particulars of, or request for particulars of, any such pleading or document; (c) any claim, application, affidavit, notice of motion, summons, subpoena, order, or other court document used or intended to be used in the speculative proceeding; (d) any correspondence connected with or relating to the speculative proceeding; and page 1 of 10 pages

2 (e) any settlement agreement used or intended to be used to compromise the speculative proceeding or any issue in the speculative proceeding prepare, in respect of a document, includes drawing and/or settling advice means any opinion or advice connected with the speculative proceeding, whether given in writing, in conference or by telephone, and includes: (a) an advice on prospects of success; (b) an advice on quantum; or (c) an advice on evidence the practitioners means the senior counsel, junior counsel, and the solicitor outlays means any out-of-pocket expenses paid by any of the practitioners to a third party in connection with the speculative proceeding, and includes: (a) filing fees and other court costs and charges; (b) the cost of obtaining a transcript of proceedings; (c) travelling and accommodation expenses; and (d) fees paid to independent expert witnesses and consultants fees means any professional fees, costs, charges or other remuneration payable to any of the practitioners, apart from outlays judgment includes any order of a court or tribunal, and any award by an arbitrator settlement means any enforceable contract, agreement or understanding, whether written or unwritten, by which the parties to the speculative proceeding agree to compromise or settle the speculative proceeding or any issue in the speculative proceeding. 2. The Senior Counsel s Obligations. In consideration of the senior counsel s right to receive payment in accordance with clause 7 hereof, the senior counsel agrees to: 2.1 act as counsel for the client in the speculative proceeding on a speculative basis in accordance with the provisions of this agreement; and 2.2 provide, in respect of the speculative proceeding, but subject to the provisions of this agreement, all of the services usually provided by senior counsel in a case similar to the speculative proceeding. 3. Junior Counsel. It is agreed that: 3.1 the solicitors shall retain, after consultation with the senior counsel, a junior counsel acceptable to the senior counsel to assist the senior counsel in respect of the speculative proceeding; 3.2 in the absence of written agreement between the junior counsel and the solicitor and/or the client governing the terms of the junior counsel s retainer: (a) the provisions of this agreement shall apply mutatis mutandis to the retainer of the junior counsel; and (b) the junior counsel s fees, for any item of work, shall be two-thirds of the senior counsel s fees for that item of work; 3.3 the senior counsel shall not be required in connection with the speculative proceeding to do any of the following things (but may, at the election of the senior counsel, choose to do all or any of them) without the assistance of junior counsel: (a) prepare any document; (b) attend any conference; (c) provide any advice; (d) appear at the trial of the speculative proceeding, any application connected with the speculative proceeding, or any appeal in the speculativeproceeding; or (e) participate in any ADR in relation to the speculative proceeding or any issue in the speculative proceeding. page 2 of 10 pages

3 4. Limitations on the Senior Counsel s Obligations. It is agreed that the senior counsel is not required by the terms of this agreement to do any of the following things, but may at the election of the senior counsel choose to do all or any of them: 4.1 prepare any document, apart from settling a document of a kind which is normally settled by senior counsel in a case similar to the speculative proceeding; 4.2 appear on any application connected with the speculative proceeding, unless the nature of the application is such as would normally require representation by senior counsel in a case similar to the speculative proceeding; 4.3 attend any conference, unless the matters to be canvassed at the conference are matters of a kind which normally require attendance by senior counsel in a case similar to the speculative proceeding; 4.4 provide any advice, unless the matters to be the subject of the advice are matters of a kind which normally require advice by senior counsel in a case similar to the speculative proceeding; or 4.5 participate in any ADR in relation to the speculative proceeding or any issue in the speculative proceeding, other than a court-ordered mediation or an arbitration. 5. The Solicitor s Obligations. The solicitor agrees to: 5.1 provide the senior counsel with a proper and comprehensive brief; 5.2 update the brief as needed from time to time; 5.3 retain, after consultation with the senior counsel, a junior counsel acceptable to the senior counsel to assist the senior counsel in respect of the speculative proceeding; 5.4 conduct the speculative proceeding in an efficient, competent and timely fashion; 5.5 liaise with the senior counsel to ensure that, where possible, the following matters are scheduled for dates which are convenient to the senior counsel: (a) the trial of the speculative proceeding; (b) any application or appeal connected with the speculative proceeding at which the senior counsel is to appear; (c) any conference in respect of the speculative proceeding which the senior counsel is to attend; and (d) any ADR in relation to the speculative proceeding in which the senior counsel is to participate; 5.6 advise the senior counsel, with as much notice as possible, of: (a) any dates referred to in sub-clause 5.5 hereof; and (b) the time-limits for taking any step in connection with the speculative proceeding in which the senior counsel is to be involved; 5.7 ensure that payment of the senior counsel s fees is made and secured in accordance with clause 7 hereof; and 5.8 unless otherwise provided in item 4 of the schedule, pay or reimburse to the senior counsel all reasonable travelling and accommodation costs for the senior counsel for the purposes of the speculative proceeding. 6. Conduct of the Speculative Proceeding. Subject to consultations with the solicitor and junior counsel, and the client s instructions, the senior counsel shall have full discretion regarding the conduct of the speculative proceeding. 7. The Senior Counsel s Fees. The following provisions shall apply in respect of the senior counsel s fees for the speculative proceeding: 7.1 The senior counsel s fees shall be at the rates published by the seinor counsel from time to time on the senior counsel s website at < together with a premium as specified in item 5 of the schedule. 7.2 The senior counsel s fees shall be payable only: (a) in the event of a favourable outcome in the speculative proceeding; and page 3 of 10 pages

4 (b) out of the proceeds of the speculative proceeding. 7.3 For the purposes of this clause, a favourable outcome means either: (a) a judgment in the speculative proceeding providing for a payment of money or a transfer of property to or for the benefit of the client; or (b) a settlement of the speculative proceeding involving a payment of money or a transfer of property to or for the benefit of the client; or (c) a judgment in the speculative proceeding, or a settlement of the speculative proceeding, providing for payment of some or all of the client s costs; or (d) a judgment in the speculative proceeding, or a settlement of the speculative proceeding, which has a practical outcome beneficial to the client. 7.4 For the purposes of this clause, the proceeds of the speculative proceeding means: (a) any money paid to or received by or on behalf of the client as a consequence of a judgment in the speculative proceeding or a settlement of the speculative proceeding; and (b) the monetary value of any property transferred to the client or on the client s behalf as a consequence of a judgment in the speculative proceeding or a settlement of the speculative proceeding; and (c) all sums payable pursuant to a judgment in the speculative proceeding, or a settlement of the speculative proceeding, in respect of the client s costs; and (d) the monetary value of any practical outcome beneficial to the client as a consequence of a judgment in the speculative proceeding or a settlement of the speculative proceeding. 7.5 The client hereby: (a) charges the proceeds of the speculative proceeding with the payment of the practitioners fees and outlays; (b) agrees to provide to the solicitor an irrevocable authority, authorising the solicitor to receive the whole or any part of the proceeds of the speculative proceeding, and to apply the same in discharge of the practitioners fees and outlays; and (c) in the event that the proceeds of the speculative proceeding are or include property other than money, irrevocably consents to the lodgement by the solicitor of a caveat over the same, and agrees to provide to the solicitor a registerable mortgage over the same to secure payment of the practitioners fees and outlays. 7.6 Subject to clause 8, in the even that the proceeds of the speculative proceeding are insufficient to satisfy the practitioners fees and outlays, the same shall be applied: (a) first, in payment pro rata of the outlays incurred by each of the practitioners; and (b) secondly, in payment pro rata of the fees payable to each of the practitioners. 7.7 If any costs are ordered to be paid to the client prior to the trial of the speculative proceeding, the proceeds of such costs orders shall be applied in partial satisfaction of the practitioners fees and outlays, in accordance with the preceding sub-clauses of this clause. 8. Withdrawal by the Senior Counsel. The parties agree as follows: 8.1 The senior counsel may withdraw from further participation in the speculative proceeding either: (a) if an event of default is committed by the client; or (b) if an event of default is committed by the solicitor; or (c) if the withdrawal of the senior counsel is otherwise justified. 8.2 For the purposes of this clause, an event of default is committed by the client if: (a) the client s instructions to the solicitor or the senior counsel are demonstrated, to the satisfaction of the senior counsel, to be false to the knowledge of the client; or (b) the client is demonstrated, to the satisfaction of the senior counsel, to have knowingly withheld material information from the solicitor or the senior counsel; or (c) the client is, to the satisfaction of the senior counsel, guilty of conduct which ethically precludes the senior counsel from continuing in the speculative proceeding; or page 4 of 10 pages

5 (d) the client is, to the satisfaction of the senior counsel, guilty of conduct which prejudices the prospects of success of the speculative proceeding; or (e) the client is, to the satisfaction of the senior counsel, guilty of conduct which prejudices the senior counsel s prospects of recovering payment in accordance with clause 7 hereof; or (f) the client is, to the satisfaction of the senior counsel, guilty of a breach of any provision of this agreement; or (g) the client declines to enter into a settlement of the speculative proceeding on terms which the senior counsel advises are appropriate; or (h) the client (being a natural person) dies or becomes a bankrupt, or (being a body corporate) is wound up, placed in receivership or external administration, deregistered or dissolved, or (in any case) is convicted of an indictable offence or becomes subject to administration under any law relating to bankruptcy or insolvency. 8.3 For the purposes of this clause, an event of default is committed by the solicitor if: (a) the solicitor s instructions to the senior counsel are demonstrated, to the satisfaction of the senior counsel, to be false to the knowledge of the solicitor; or (b) the solicitor is demonstrated, to the satisfaction of the senior counsel, to have knowingly withheld material information from the senior counsel; or (c) the solicitor is, to the satisfaction of the senior counsel, guilty of conduct which ethically precludes the senior counsel from continuing in the speculative proceeding; or (d) the solicitor is, to the satisfaction of the senior counsel, guilty of conduct which prejudices the prospects of success of the speculative proceeding; or (e) the solicitor is, to the satisfaction of the senior counsel, guilty of conduct which prejudices the senior counsel s prospects of recovering payment in accordance with clause 7 hereof; or (f) the solicitor is, to the satisfaction of the senior counsel, guilty of a breach of any provision of this agreement; or (g) the solicitor declines to enter into a settlement of the speculative proceeding on terms which the senior counsel advises are appropriate; or (h) the solicitor dies or becomes a bankrupt, or is convicted of an indictable offence, or becomes subject to administration under any law relating to bankruptcy or insolvency; or (i) the solicitor retires from practice as a solicitor, or ceases to be a person duly admitted and qualified to practise and the holder (if required) or a current practising certificate in the relevant jurisdiction; or (j) the solicitor s name, or the name of the solicitor s firm, is placed on the Private List maintained by the Bar Association of Queensland. 8.4 The senior counsel shall only give advice of the nature contemplated by sub-clause 8.2(g) and subclause 8.3(g) if: (a) an offer of settlement is made by another party to the speculative proceeding, or the senior counsel is otherwise satisfied that another party to the speculative proceeding is willing to settle on certain terms; and (b) the senior counsel is satisfied that, having regard to the client s prospects of success in the speculative proceeding, the likely quantum recoverable in the speculative proceeding, and all other relevant circumstances, the proposed terms of settlement represent an appropriate commercial outcome. 8.5 For the purposes of this clause, the senior counsel s withdrawal from the speculative proceeding is otherwise justified if, due to circumstances not amounting to an event of default on the part of the client or the solicitor: (a) the trial of the speculative proceeding, or of any application or appeal connected with the speculative proceeding at which the senior counsel is to appear, is set down on a date when the senior counsel is not available; or (b) the senior counsel is unable, by reason of other professional commitments, to give to the speculative proceeding the attention which the speculative proceeding warrants; or page 5 of 10 pages

6 (c) the senior counsel is ethically precluded from continuing in the speculative proceeding; or (d) a material fact or a matter of law comes to the attention of the senior counsel which, in the opinion of the senior counsel, significantly reduces either the client s prospects of success, or the quantum likely to be recovered by the client, in the speculative proceeding; or (e) the senior counsel dies, accepts appointment to a full-time judicial or quasi-judicial office, or ceases to practise as a barrister. 8.6 The full amount of the senior counsel s fees (including the premium) shall immediately become due and payable, and must be paid before other counsel is retained, if: (a) the senior counsel withdraws from the speculative proceeding on the ground that an event of default has been committed by the client; or (b) the retainer of the senior counsel is terminated by the solicitor or the client, otherwise than by reason of any breach by the senior counsel of his obligations under this agreement; or (c) the client terminates the client s instructions to the solicitor. 8.7 If the senior counsel withdraws from the speculative proceeding on the ground that an event of default has been committed by the solicitor, the provisions of clause 7 shall apply in the case of a favourable outcome in the speculative proceeding, provided that payment of the senior counsel s fees and outlays shall take priority over payment of the solicitor s fees. 8.8 If the senior counsel withdraws from the speculative proceeding on the ground that the senior counsel s withdrawal from the speculative proceeding is otherwise justified, of if the senior counsel s retainer is terminated by the solicitor or the client by reason of a breach by the senior counsel of his obligations under this agreement, the provisions of clause 7 shall apply in the case of a favourable outcome in the speculative proceeding, provided that payment of the senior counsel s fees shall be deferred to payment of the fees payable to another practitioner. 8.9 The senior counsel may from time to time, and shall on the request of the solicitor, provide an interim account of the senior counsel s fees accrued to date. 9. Independent Advice 9.1 The client acknowledges and agrees that, prior to entering into this agreement, the client has had: (a) the benefit of competent legal advice, independent from the senior counsel, from the solicitor; and (b) the opportunity, if the client so chooses, to obtain independent legal advice from another solicitor or firm of solicitors. 9.2 The solicitor warrants to the senior counsel that, prior to execution of this agreement by the client, the solicitor has: (a) provided to the client a full and competent explanation of the provisions of this agreement; (b) satisfied himself/herself that the client understands this agreement and its effect; and (c) advised the client of the client s right, if the client so chooses, to obtain independent legal advice from another solicitor or firm of solicitors. 10. Appeal 10.1 In the event of an appeal, the senior counsel: (a) shall have the right of first refusal to accept a brief for the appeal; and (b) shall be under no obligation to accept a brief for the appeal In the event that the senior counsel accepts a brief for an appeal, and unless some other agreement is reached, the provisions of this agreement shall apply mutatis mutandis in respect of the appeal In the event of an appeal, and whether or not the senior counsel accepts a brief for the appeal, the provisions of clause 7 shall apply as if the outcome of the appeal were the outcome of the speculative proceeding at trial However, in the event of an appeal, and if the senior counsel is not offered the right of first refusal to accept a brief for the appeal, the senior counsel s rights in accordance with clause 7 shall not be adversely affected by the outcome of the appeal. page 6 of 10 pages

7 11. Limitation of Liability. To the fullest extent permitted by law, the liability of the senior counsel for negligence or any other actionable wrong in connection with the speculative proceeding: 11.1 shall be no greater than if the senior counsel had been retained for the speculative proceeding otherwise than on a speculative basis; and 11.2 shall be limited to the amount (if any) recoverable pursuant to any policy of professional indemnity insurance held by the senior counsel. 12. Effect of this Agreement. Save as expressly provided in this agreement: 12.1 Nothing in this agreement shall be construed as altering the professional relationship which would have existed, had the senior counsel had been retained for the speculative proceeding otherwise than on a speculative basis, between: (a) the senior counsel and the solicitor; and (b) the senior counsel and the client The solicitor acknowledges and agrees that, regardless of any other effect of the provisions of this agreement, the provisions of this agreement are binding upon the solicitor in conscience and honour All funds and property received by the solicitor or the client constituting the proceeds of the speculative proceeding (within the meaning of clause 7 hereof) shall be held by the solicitor or the client (as the case may be) on trust to be applied in accordance with clause 7 hereof. 13. Dispute Resolution. The following provisions shall apply in respect of any dispute, difference or disagreement regarding the construction or interpretation of this agreement, or any other dispute, difference or disagreement arising under or in respect of this agreement: 13.1 When such a dispute, difference or disagreement ( the issue ) arises, the parties shall endeavour, in good faith, to resolve the same amongst themselves If, within fourteen (14) days after the issue arises, the parties are unable to resolve the issue amongst themselves, any party may refer the issue to a referee for the referee s expert determination ( the reference ) If the parties cannot agree upon the appointment of a referee, the referee shall be appointed by the Chief Executive of the Bar Association of Queensland, at the request of any party The referee shall make a determination in respect of the issue ( the determination ) In making the determination, the referee: (a) shall act as an expert and not as an arbitrator; (b) may make the determination on the papers, based on such submissions as each party chooses to provide; (c) shall not be required to conduct a hearing, or otherwise to comply with the rules of natural justice; (d) may give such directions to the parties as the referee considers appropriate, requiring the delivery of submissions, or otherwise to facilitate the prompt and efficient making of the determination; and (e) may make the determination in the absence of submissions from a party, if the party fails to comply with a direction given by the referee The determination: (a) shall be given in writing, signed by the referee, to the parties or their legal representatives; and (b) shall be final, conclusive, and binding on each of the parties For making the determination, the referee shall be entitled to remuneration ( the determination fee ) as agreed by the parties or, in default of such agreement, as fixed by the Chief Executive of the Bar Association of Queensland Except as provided in sub-clause 13.9, the determination fee shall be paid by the parties in equal shares. page 7 of 10 pages

8 13.9 If the referee is of the opinion that the issue has arisen as a result of a party ( the recalcitrant party ) adopting a manifestly unsustainable position, or acting oppressively, vexatiously, frivolously or unreasonably, the referee: (a) may record, in the determination, that opinion and the reasons therefor; and (b) may, by the determination, direct the recalcitrant party to pay the whole of the determination fee, or a proportion of the determination fee specified in the determination that exceeds the share which would otherwise be payable by the recalcitrant party under sub-clause General Interpretation Provisions The parties agree that, in the construction and interpretation of this agreement: (a) singular words include the plural, and vice versa; (b) words of the masculine, feminine or neuter gender include all other genders; (c) references to persons include bodies corporate; (d) references to currency are references to lawful Australian currency; (e) all rights and obligations conferred or imposed by this agreement are both joint and several; (f) references to a party include the party s lawful heirs, successors, administrators and assigns; (g) an obligation imposed by this agreement, if no time is specified for its performance, must be performed as soon as is reasonably practicable; (h) an obligation imposed by this agreement, if required to be performed on or by a particular date, must be performed not later than 4.00 pm (Brisbane time) on that date; (i) an obligation imposed by this agreement, if no place is specified for its performance, must be performed at Brisbane The client acknowledges and agrees that, in entering into this agreement: (a) the client has not relied on any representation, assertion, statement, promise or assurance, except as expressly contained in this agreement; and (b) the client has not been the subject of any duress, economic duress, undue influence, or unconscionable conduct This agreement constitutes the entire agreement between the parties This agreement may only be amended or varied by a further written agreement duly executed by all parties affected by the amendment or variation A waiver by any party of the party s rights under this agreement shall not preclude the enforcement by the party of: (a) any other right under this agreement; or (b) the same right on a subsequent occasion This agreement shall be governed by the law in force in the State of Queensland This agreement may be executed in counterpart copies, by each party, or each party s representative, executing at the appropriate point in the schedule All persons signing or otherwise executing this agreement hereby warrant that they have authority to do so on behalf of the person on whose behalf they purport to do so Any provision of this agreement which is unenforceable shall be severable, to the intent that all provisions of this agreement which are lawfully capable of enforcement shall continue to be operative The solicitor and the client shall be taken to accept the provisions of this agreement by their conduct if: (a) the senior counsel has been retained and agreed to act on a speculative basis; (b) no other written agreement is entered into, containing the terms of the senior counsel s retainer on a speculative basis; (c) the senior counsel has provided a pro forma copy of this agreement to the solicitor, or otherwise drawn the provisions of this agreement to the attention of the solicitor; and (d) the solicitor thereafter continues to provide instructions to the senior counsel. page 8 of 10 pages

9 THE SCHEDULE item 1 the solicitor firm name firm address contact name direct line fax number address item 2 the client name address contact name direct line fax number address item 3 the speculative proceeding if proceedings have already been commenced, insert serial number or other description otherwise, insert description of proposed proceedings page 9 of 10 pages

10 item 4 payment of travelling and accommodation expenses party by whom travelling and accommodation expenses for the senior counsel are to be paid the solicitor the client the senior counsel unless otherwise provided, travelling and accommodation expenses are to be paid by the solicitor item 5 the premium unless otherwise provided, the premium shall be 50% Signed by the senior counsel Anthony Morris QC... date: Signed by the solicitor... date: Signed by the client... date: page 10 of 10 pages