7. Costs assessment of private lawyers' costs

A legally aided person is entitled to have the costs paid to a private lawyer assessed (see s.40 of the Legal Aid Commission Act 1979).

A legally aided person may dispute the final contribution to be paid because of the costs paid to the private lawyer.

7.1 - Procedure if legally aided person disputes the contribution to legal costs because of costs paid to the private lawyer

Consider whether there are any circumstances which would lead to a reduction in the contribution to legal costs. See Contributions policy 3.11 for guidance on what can be taken into consideration when reducing contribution to legal costs.

If the calculated contribution amount is not changed Legal Aid NSW will:

• advise the assigned lawyer in writing that their costs have been disputed and request an itemised account setting out the client’s right to have costs assessed under s 40 of the Act;
• when the itemised account is received, send a copy to the legally aided person requesting information as to which items are disputed;
• provide the legally aided person with fourteen (14) days in which to respond to this request and inform the legally aided person at this time that private lawyers are paid in accordance with the Legal Aid Fee Scale and the costs paid to private lawyers are significantly less than commercial rates and monitored carefully by Legal Aid NSW;
• forward any response to the private lawyer for their consideration, and
• refer the client to the Supreme Court Costs Assessment Scheme or the Family Court Taxation Service, if the private lawyer does not agree to reduce the bill of costs.

7.2 - Where the legally aided person is referred to costs assessment

In referring the legally aided person to costs assessment, Legal Aid NSW should:

• provide the legally aided person with specific details of the cost of having costs assessed (at least $120 or 1% of the bill, whichever is greater) and inform them they may be required to pay costs of assessment and the private lawyer’s costs of the assessment process.
• advise the legally aided person that the disputed contribution amount is a debt owed to Legal Aid NSW and the debt will be referred to the Accounts Receivable Unit.

A person has 12 months to apply for assessment of a bill, even if the contribution (or bill) has already been paid.

7.3 - Responsibility for following up the debt

The Accounts Receivable Unit will be responsible for following up the debt.

7.4 - Where costs assessment reduces the private lawyer’s bill of costs

In the event the client has paid the contribution amount and the costs assessment certificate reduces the original amount paid to the lawyer, the difference may be repaid to the client.

Legal Aid NSW may recoup the difference paid to the legally aided person from the private lawyer.