The legal cases surrounding the conduct of Bruce Lehrmann in raping Brittany Higgins on a Federal Minister’s couch in Parliament House in 2019 appear to be finally coming towards a conclusion. Justice Michael Lee in the Federal Court found Mr Lehrmann raped Ms Higgins on the balance of probabilities labelling the fall out as an ‘omnishambles’. Some might say there has finally been some degree of justice for Ms Higgins. The collateral damage from this incident has affected the reputations of nearly all touched by the case, not least the two people at its centre. The legal costs of this litigation are set to be astronomical. It is anticipated that the legal costs to Network Ten who successfully defended Mr Lehmann’s defamation allegations against them would be approaching $10 million. That would appear to be a conservative number considering that Nine Entertainment, in the defence of the Ben Roberts-Smith claim which went for 110 days cost some $30 million. The Nine Entertainment and Ben Roberts-Smith case went for a lot longer than the Lehrmann trial but had similar significance. Senior Counsel with expertise in defamation that conducted this trial are now charging around a minimum of $12,000 a day. What we don’t know about Mr Lehrmann is whether his solicitors were acting pro bono, or he was using solicitors and barristers who were acting on a ‘no win, no fee’ basis.
On 22 April 2024 the parties in the Lehrmann and Network Ten trial were to file submissions on legal costs. Whilst there is a cost order against Mr Lehrmann, that will mean he will be required to pay the winning party Network Ten’s costs in association with the litigation. It is anticipated that it will be highly difficult for Network Ten to recover very much from Mr Lehrmann unless, like in the Ben Roberts-Smith and Nine Entertainment case Network Ten is able to prove that Mr Lehrmann had third-party funding for the trial. If someone, such as Channel 7 did in the Ben Roberts-Smith case funded Mr Lehrmann’s litigation, it is possible a cost order could be brought against them. It would appear from recent news reports that it is highly unlikely that Mr Lehrmann has significant assets against which a costs order could be enforced against.
Cost orders in civil trials usually work such that the losing party is ordered to pay the winning party’s costs. Such a cost order will only usually occur if the matter proceeds to a trial-based resolution. Civil court statistics show that only approximately 2% of matters that are started in court are resolved by a trial-based resolution. The balance of them are resolved by the parties reaching an agreement beforehand or a default or summary judgement being entered against the defendant or the plaintiff not proceeding with the litigation.
Once a court makes an order for costs, the court will then need to determine the amount of those costs. The court does this by a process called ‘taxation’, not to be confused with the taxation required to be paid on income. A court-based taxation is a process of the court determining an amount of costs to award a party that has received a costs order. A court does this by assessing the work performed in the matter that the court considers to be reasonable against a scale of costs. The scale of costs provides for certain tasks that the lawyers conduct in the preparation for trial and the conducting of a trial and a range of amounts that can be awarded for each item of that work. The court will then look at the complexity of the matter and the substance of the work required to be conducted in that particular matter to determine an amount for each item in the scale. Once the court determines that amount, that amount operates as a judgment against the party that has had costs ordered against them.
Thus, once Network Ten have a cost order that has been assessed and determined against Mr Lehrmann, it will operate as a judgment against him. They can then enforce that judgment by seizing assets owned by Mr Lehrmann or could choose to make Mr Lehrmann bankrupt if he is unable to pay the cost order.
In the year since journalist Samantha Maiden broke the news of Ms Higgins’ allegations, the case has ensnared, at a truly astonishing rate a range of passerby’s also, lawyers, ministers, staffers, prosecutors, journalists, police, judges, late night massage therapists, drug dealers, former ‘It’ girls have all been damaged by their connections with this matter. The number of court cases and enquiries relating to this incident is now 17, 6 ongoing and 11 concluded separately.
Mr Lehrmann has brought 3 separate defamation cases against media companies, News Corp paid Mr Lehrmann $295,000 to settle, the ABC paid Mr Lehrmann $150,000 to settle. The total cost of the case brought by Lehrmann against Network Ten is anticipated to be at least $10 miillion.
When conducting civil litigation, one of the important things to always consider is the ability, if successful, to be able to enforce that judgment against the other party. There is no point in conducting litigation if you are going to succeed but not achieve the desired outcome in receiving the appropriate compensation. In this circumstance, Network Ten had no choice as they were defending the matter.
Stay tuned to see if Mr Lehrmann takes the step of risking further by appealing the decision to the Court of Appeal. It would appear, in any event, Mr Lehrmann’s actions by commencing defamation proceedings has turned the victory he had in the criminal court into the most significant defeat by now having a court determine that on the balance of probabilities he did rape Ms Higgins. With the recent passing of OJ Simpson, I am reminded of a quote from John Grisham:
“OJ Simpsons theory of legal fees; I’m not paying you; You are lucky to be here, go make a buck with your book.”
All Network Ten may have is a ‘mini’ series to try to recover some of the $8 – 10 million likely to have been spent on defending this claim.
If you have any queries in regard to legal costs or pursuing civil litigation, please contact Lynn and Brown Lawyers.
About the Author: Steven Brown is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.
