Privilege pays the price – Parry v Kennedy & Anor [2014] QCA 239

In Parry v Kennedy & Anor [2014] QCA 239, the Queensland Court of Appeal has upheld a decision by the Supreme Court of Queensland to reject a solicitor’s request for reimbursement of substantial loss and expense incurred in complying with a subpoena requiring him to give evidence at trial.

The appellant was a solicitor who was subpoenaed to give evidence in relation to estate litigation for the respondents. The appellant had previously acted for the respondents in the estate litigation.

The appellant originally sought an order from the Supreme Court of Queensland that the respondents pay him $45,000.00 as reimbursement of loss and expenses in complying with the subpoena. The bulk of the costs were said to have arisen from the appellant obtaining legal advice from his firm and from junior and senior counsel in relation to claiming legal professional privilege.

The primary judge, Justice Lyons, concluded it was not reasonable for an experienced solicitor to seek independent legal advice about his obligations in these particular circumstances. Her Honour concluded the appellant’s reasonable costs of complying with the subpoena amounted to $800.00.

On appeal, the appellant argued the primary judge erred in not finding the appellant had properly sought the independent legal advice.

The appellant also attempted to challenge the primary judge’s finding that he was an ‘experienced solicitor’. The appellant was admitted as a solicitor in 1979, was a director of the company that ran the legal firm and had been a ‘founding partner’ of the firm.

He ran the estate litigation. Taking these facts into account, the Court of Appeal found the trial judge was entitled to assume the appellant was competent to understand what a privileged occasion was. Furthermore, the appellant’s former client would be present and represented by a solicitor and counsel at the trial. The primary judge considered the applicable rule that the ‘privilege belonged to the client…not the solicitor’ and that the appellant, as the solicitor, had no independent interest in maintaining or waiving the legal professional privilege’, but was dependent upon the attitude of his client.

The appellant also attempted to argue that there was nothing in the primary judge’s reasons that indicated a circumstance that disentitled him from recovering costs, much less that he should be ordered to pay the respondent’s costs.

The Court of Appeal rejected this argument. It was held the primary judge was entitled to consider that the application, brought by a senior solicitor who had practiced litigation, was lacking in merit. Furthermore, the discrepancy in the amount nominated and the amount awarded was vast. In these circumstances it was open to the trial judge to order the appellant pay the respondent’s costs.

The Court of Appeal ordered costs be assessed on an indemnity basis due to a general lack of merit in the appeal, and the fact the appellant mounted his appeal on the false basis that the only reasons given by the primary judge were to be derived from remarks made by her Honour in the course of argument. This case serves as a lesson to both solicitors and to those commissioning expert evidence as to the reasonableness of expenses incurred and claimed when answering a subpoena.