costs in criminal proceeds litigation
This is general information only and not legal advice. For legal advice regarding costs on your particular matter, talk to your engaged legal professional.
The applications filed against you by the Commissioner of Police are civil proceedings (civil) and are conducted under the High Court Rules 2016. When we talk about costs on this page, we are not talking about your legal fees, we are talking about costs awards that are made by the High Court after delivery of a judgment.
In civil, we have a costs regime which helps to deter wasteful or frivolous litigation or litigation that could easily be settled if the parties had made an effort to negotiate constructively and reasonably. We do this by having a general rule that the losing side should make a contribution to the winning side's legal fees and disbursements incurred for the purpose of that proceeding.
Costs are determined at the end of a civil proceeding usually, after a judgment has been delivered. Sometimes the Judge will ask the parties to negotiate costs between themselves (which saves court time), sometimes the Judge will ask the parties to file memoranda on costs (particularly if there is no clear 'winner'), and sometimes the Judge will make an order for costs upon delivery of the judgment itself. We always say, conduct your litigation in a 'costs conscious' way.
We practice in a costs conscious way by leaving a trail of helpful 'costs nuggets' right from the start of the litigation. We like to leave a paper trial which demonstrates an effort to negotiate with the Commissioner about each major defensive step we take in the proceeding. We make special formal offers called Calderbank offers, which can come back to bite the Commissioner if he gets a worse result than what we offered him in our special Calderbank offer. Calderbank offers are referred to as offers that are 'without prejudice, save as to costs'. So, whatever is conceded or offered in the Calderbank by us cannot be placed before the High Court during the proceeding; the contents of our offer must only be put before the High Court when it comes time for the judge to make a ruling on costs.
It is important to remember that if you win against the Commissioner, it does not mean that all the legal fees and disbursements you paid us will be reimbursed back to you by the Commissioner. The general rule is that a winning party will receive, roughly, about a third of their legal fees and disbursements paid by the Commissioner. If the Commissioner took steps that were unnecessary, inconsistent with his public model litigant status, or if he made a few moves during the litigation that were plainly legally wrong (and especially if we made a Calderbank offer telling him that!) then sometimes the judge may order increased costs against the Commissioner, or indemnity costs against the Commissioner. Indemnity means that all your legal fees and disbursements will be paid to you by the Commissioner.
In order to have a general costs regime in civil, we need a yardstick by which to measure litigation costs for everyone. So, when it comes time to consider costs by the parties (or sometimes well before then, especially if the matter is novel or is very complex) the court and counsel will decide how complex and time consuming the matter is, generally speaking. Below are the categories we look at:
In civil, we have a costs regime which helps to deter wasteful or frivolous litigation or litigation that could easily be settled if the parties had made an effort to negotiate constructively and reasonably. We do this by having a general rule that the losing side should make a contribution to the winning side's legal fees and disbursements incurred for the purpose of that proceeding.
Costs are determined at the end of a civil proceeding usually, after a judgment has been delivered. Sometimes the Judge will ask the parties to negotiate costs between themselves (which saves court time), sometimes the Judge will ask the parties to file memoranda on costs (particularly if there is no clear 'winner'), and sometimes the Judge will make an order for costs upon delivery of the judgment itself. We always say, conduct your litigation in a 'costs conscious' way.
We practice in a costs conscious way by leaving a trail of helpful 'costs nuggets' right from the start of the litigation. We like to leave a paper trial which demonstrates an effort to negotiate with the Commissioner about each major defensive step we take in the proceeding. We make special formal offers called Calderbank offers, which can come back to bite the Commissioner if he gets a worse result than what we offered him in our special Calderbank offer. Calderbank offers are referred to as offers that are 'without prejudice, save as to costs'. So, whatever is conceded or offered in the Calderbank by us cannot be placed before the High Court during the proceeding; the contents of our offer must only be put before the High Court when it comes time for the judge to make a ruling on costs.
It is important to remember that if you win against the Commissioner, it does not mean that all the legal fees and disbursements you paid us will be reimbursed back to you by the Commissioner. The general rule is that a winning party will receive, roughly, about a third of their legal fees and disbursements paid by the Commissioner. If the Commissioner took steps that were unnecessary, inconsistent with his public model litigant status, or if he made a few moves during the litigation that were plainly legally wrong (and especially if we made a Calderbank offer telling him that!) then sometimes the judge may order increased costs against the Commissioner, or indemnity costs against the Commissioner. Indemnity means that all your legal fees and disbursements will be paid to you by the Commissioner.
In order to have a general costs regime in civil, we need a yardstick by which to measure litigation costs for everyone. So, when it comes time to consider costs by the parties (or sometimes well before then, especially if the matter is novel or is very complex) the court and counsel will decide how complex and time consuming the matter is, generally speaking. Below are the categories we look at:
That looks a bit complex! Don't worry, this is something lawyers look at for you, but we are just showing you this so you understand where we are coming from when we say we practice costs consciously. Let's say we are defending you for a low value criminal proceeds matter regarding a 2017 Mercedes, a jetski, and $20K in cash that was found in your fridge. The Commissioner says the Merc and the jetski are tainted and that the $20K in cash is revenue from your small business 'Methamphetamine for all'. You are the only respondent and despite the facts being against you i.e. there is a sign outside your house advertising your small business, you want to fight the forfeiture of your Merc, jetski, and cash. Brilliant! We love a challenge.
So, the general costs categorization of criminal proceeds matters is "2". Under Part 1 of Schedule 2 above, you can see that the daily recovery rate for a category 2 matter is $2,390. We think the above Merc example would be a category 2 matter.
Now that we have a measure for the complexity of the proceeding, we need to work out a general measure for the time actually spent doing work on a matter of this kind. So, below we have another schedule:
So, if counsel and the court agree your case is going to take an average amount of time, they would categorize time as B. If your case was very complex, the court might categorize it as C. Remember, the categories are just to provide a yardstick measure, they are not the actual amount of time your lawyer would spend on your case at all, nor do they represent the actual amount of fees you would be spending on your lawyer per day. So for our example above regarding the Merc, let's say we all agreed the time allocation should be B.
So the categorization of the Merc proceeding is 2B.
Now each court step we take in the proceeding has a cost associated with it. Below are the main steps we need to be concerned with when considering what a potential cost award against you might look like OR considering what a costs award in your favour might look like:
So the categorization of the Merc proceeding is 2B.
Now each court step we take in the proceeding has a cost associated with it. Below are the main steps we need to be concerned with when considering what a potential cost award against you might look like OR considering what a costs award in your favour might look like:
Again, looks complex, but it is not. The second step we usually take defending you (after the first step of filing a memorandum of representation) is we file a notice of opposition. Let's look at the middle category for item 38 (filing a note of opposition). We can see the middle category (which is B) shows a time allocation of 2. This time allocation is multiplied by the daily recovery rate, which we showed you above was $2,390. This means the powers that be in the law determined that the average cost to a litigant of filing a notice of opposition was 2 x $2,390, which equals $4,780. So we would include this step's figure in our costs memorandum, and every other step we took also. Each mention we attend on your behalf has a time allocation of 0.2. This means every time we trot off to a 9AM list mention of your matter, this incurs general costs of 0.2 x $2,390, which equals $478. So, once we include all the steps we took in your proceeding (submissions, memoranda, affidavits, attending a hearing etc), you can see it all adds up.
We call this general way of working out costs, costs on the scale, but counsel for each party can argue costs awards up, or they can argue them down. If you are unsuccessful and costs are awarded against you, then we will argue costs down as much as possible. If we win against the Commissioner, we will argue costs up as much as possible. That's just what we do as counsel.
In criminal proceeds litigation the odds are already against you. We are not just saying that, it's built into the legislation. The burden the police have to meet is pretty low at the start (restraint) and doesn't have to be certain at the end (forfeiture). So, in these circumstances, we say to all clients that we need to take steps in the proceeding in a cost conscious manner. We do this by making you aware of the cost risk at every step we take, but particularly steps that are testing the law or steps that are taken despite strong case law and/or the facts being against you.
Costs are ordered against a party, not their lawyers. People are regularly bankrupted as a result of unpaid costs awards, so it is no joke. You are the one who needs to be costs conscious.
We hope this helps. It is not legal advice, it is general advice for a general audience. Talk to your engaged legal professional about costs risk in your particular case or proceeding.
