Litigants shouldn’t bear court costs, say BigLaw firms – Lawyers Weekly

The proposed introduction of a positive duty to prevent sexual harassment is “only one piece of the puzzle” — ensuring that claimants can viably enforce their rights, through Australia’s courts, is fundamental, say national plaintiff firms.

As reported yesterday by Lawyers Weekly, over 100 lawyers and legal organisations have signed a letter to the Attorney-General and Minister for Women, expressing “deep concern” over the proposal (in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022) for litigants to bear their own costs in sexual harassment cases, which could also make it “uneconomical” for law firms to offer no-win-no-fee arrangements.

As Women’s Legal Service NSW principal solicitor Pip Davis noted, the bill “misses an important opportunity to address the power imbalance experienced by working women bringing actions against their employers”.

The risk, Ms Davis pointed out, is that if a claimant loses, “they have to pay hundreds of thousands of dollars in legal costs”.

Shine Lawyers head of employment law Samantha Mangwana — another letter signatory – added that the proposed reform seeks to remove the ordinary rule that the loser pays the winner’s costs.

Legislators must bear in mind, Ms Mangwana continued, that those costs may then exceed compensation.

Without certainty on costs, and needing to weigh that up against compensation, plaintiff lawyers will not be able to offer no-win-no-fee agreements even in cases they believe will win, Ms Mangwana hypothesised.

To remove the deterrent of an adverse costs risk, and ensure that victim-survivors still recover meaningful compensation after their legal costs, a simple alternative would be to substitute the costs rule from federal whistleblower protections, since these too are cases brought in the public interests.

“Costs can then only be awarded against a plaintiff if the case was brought vexatiously or without reasonable cause, or conducted unreasonably.”

Source: Litigants shouldn’t bear court costs, say BigLaw firms – Lawyers Weekly

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