When Precaution Becomes Pressure: Lessons from Stanley v Phillips (1966) 115 CLR 470

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Published: 17 November 2025 | Reviewed: 17 November 2025
(3-minute read)

Case Summary - Facts, Reasoning and Principles

This case began as a personal-injury matter where liability had already been admitted. Only the amount of damages was left to resolve. The case was transferred to the Supreme Court when new medical evidence raised questions about future deterioration.

Shortly before the hearing, the plaintiff briefed both senior and junior counsel. The matter then settled before trial. When costs were later assessed, the defendants objected to paying the senior counsel fee.

The High Court agreed with them.

Barwick CJ emphasised that the test is not whether briefing senior counsel felt reassuring, but whether it was objectively necessary:

“The question is whether the case reasonably requires the services of two counsel… the nature and circumstances of the case provide the determinants.” (at 479)

The Court found:

• the issues were not complex,

• liability was admitted,

• the quantum issues were routine, and

• engaging senior counsel went beyond what was “necessary or proper” for the attainment of justice.

Principle:

Litigation must stay proportionate. Work that exceeds what the circumstances reasonably require, even if well-intentioned, cannot be passed onto the other party.

Why This Judgment Still Matters

Modern clients face the same pressures seen in Stanley:

• fear of under-preparation,

• late-breaking evidence,

• pressure to “cover every angle,”

• and uncertainty about which lawyer roles are genuinely required.

Those pressures often lead to parallel preparation - where settlement is still realistically possible, but court preparation begins at the same time. In the traditional single-lawyer model, both streams are often activated early:

• settlement work and

• court work

running in the background together.

That does not mean the tasks are duplicated, they are different in nature, but clients end up funding both paths at once, even though only one path will ultimately be used.

Stanley v Phillips is a reminder that disproportionate preparation can become its own form of harm.

How to Avoid the Same Trap - Cost Safety (One-Path Funding)

Among Clean Law’s Client Protection Points, the safeguard directly aligned with Stanley is Cost Safety: One-Path Funding.

The High Court’s concern was not overcharging in the abstract, it was preparation exceeding what the situation truly required. That same pattern plays out today when:

• settlement is still viable,

• but trial preparation begins anyway,

• creating unnecessary layers of cost and pressure.

The structural problem is mixed-path preparation, a feature of single-lawyer arrangements. One lawyer handles both settlement and litigation, and the client ends up funding both paths simultaneously - because the lawyer must prepare for both possibilities.

How Clean Law’s safeguard prevents this

• Two lawyers often cost less than one, because you fund one path, not both.
  Settlement work and litigation work sit in separate lanes with separate lawyers. Clients fund the path their matter is actually on.

• No mixed-path preparation.
  Settlement is overseen by one lawyer; court work begins only if the client formally chooses that path. No automatic escalation.

• Costs align with real strategy.
  Work does not expand “just in case.” Each stage is approved in escrow before it begins.

• Structural discipline replaces pressure-driven decisions.
  Clients see what is necessary now, not hypothetical futures.

Where Stanley warns against precaution turning into disproportionate cost, One-Path Funding creates a framework in which proportionate work is the default, not the exception.

Reflection

Stanley v Phillips shows how quickly litigation can escalate when uncertainty drives decisions. The case is not a criticism of caution; it is a reminder that structure matters. When clients know which path they are on, and are not asked to fund both, legal decisions become clearer, steadier, and safer.

If this judgment raised questions about when certain preparation is truly necessary, this explainer shows how Clean Law structures matters so clients fund only the path they’re actually on.

Request a Confidential Call
If your matter feels like it is expanding without clarity, a confidential conversation may help you regain control of scope and cost.

By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.

Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.