In Wentworth v Rogers [2002] NSWSC 709 the Supreme Court of NSW discussed the meaning of ‘pro bono’ and whether a conditional costs agreement can be understood as ‘pro bono’, or otherwise offending the indemnity principle.
At [70]-[77] Barrett J discussed the various understandings of the term ‘pro bono’ and specifically noted that pro bono does not exclude conditional costs.
In Wentworth v Rogers [2006] NSWCA 145 the NSW Court of Appeal discussed whether a conditional costs agreement (still ‘pro bono’) offended the indemnity principle. The Court had to consider whether costs could be awarded when the winning party had a costs agreement under which costs were contingent on a successful outcome.
Santow JA discussed the issues at [37]-[66] and concluded that such an agreement would not. Basten JA expressed the opposite view, while Hislop J did not express any view.
In Mainieri v Cirillo [2014] VSCA 227, [43]-[53] the Victorian Court of Appeal unanimously preferred Santow JA’s analysis and dismissed the (ground of) appeal against an order that costs be paid to the winning party who had a pro bono conditional costs agreement.