Litigation, Court and Hearing Costs

Liability for Costs

  • It is up to the Court to decide as to whether costs are payable by one party to another.
  • In order to make a cost order, the court has to consider the guideline and provisions which guide this discretion.

General Rule

  • As a general rule, the party which is unsuccessful will be ordered to pay the cost of the “Successful Party”
  • However, the court has the discretion to make other cost orders as well
  • In deciding whether to make an order contrary to the general rule,
  • the Court must have regard to all the circumstances of the case, including the conduct of the parties and whether a party has succeeded on part of his or her case even if he/she has not been wholly successful.

Conduct

The conduct of the parties includes (Important Provisions)

  • The conduct of both claimant and defendant before as well as during the proceedings.
  • Whether the parties or up to what extent the parties to a claim has followed the pre-action protocol.
  • Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.
  • The manner in which a party has pursued or defended his/her case and whether he/she has wholly or partly exaggerated his claim.

Failure to Comply

Failure to comply with the pre-action protocols, court orders and directions may have a significant impact on the parties to a claim.

  • Where a party has failed to comply with orders of the Court or other procedural rules the Court may reduce the amount of cost to which a successful party would normally be entitled. Further, in such a scenario, a liable party may be required to pay more than would normally be considered to be reasonable had the breach of the provision not occurred.
  • It is important to note that liability to pay costs is not necessarily an all or nothing decision and a judge may require one party to pay a percentage of the other party’s costs as well. For example, 60% or 80% of the cost of other party. The Courts have been given discretionary powers and guidance and they can make any cost order within that guideline and discretion.

Two Sets of Costs

  • The Court does not generally order an unsuccessful claimant to pay two sets of costs (typically the costs incurred by the defendant and an interested party),
  • However, the Court may order two sets of costs to be paid where the defendant and the interested party deal with separate issues, or have different interests and so require separate representation.
  • The Court may order an unsuccessful claimant to pay two sets of costs of preparing Acknowledgements of Service.

Reasonable Costs and determination of Cost

  • The Court will only allow those costs which are incurred reasonably and will not allow costs which have been unreasonably incurred or which are unreasonable in amount.
  • In determining if costs are reasonable the Court will have regard to all the circumstances of the case.
  • The basis of the assessment is important when determining whether the costs claimed are reasonable.

Determination of Cost

In determining the basis of the assessment, the Court has two options:

  • The standard basis
  • An indemnity basis

The Standard Basis

  • Most costs orders are made on the standard basis. Where a Court is silent as to the basis on which it is assessing costs, the presumption is that assessment is on the standard basis.
  • Where the amount of cost is to be assessed on the standard basis, the Court will only allow costs which are proportionate to the matters in issue.
  • Where there is doubt as to whether costs were reasonable and proportionate in amount the Court will determine the question in favour of the paying party.
  • Costs incurred are proportionate if they bear a reasonable relationship to:
  1. The sums in issue in the proceedings;
  2. The value of any non-monetary relief in issue in the proceedings;
  3. The complexity of the litigation;
  4. Any additional work generated by the conduct of the paying party; and
  5. Any wider factors involved in the proceedings, such as reputation or public importance.

An Indemnity Basis

The indemnity basis is reserved as a sanction. The Court will apply indemnity costs in those cases where the losing party has acted unreasonably in bringing or maintaining the claim or in any other way.

  • Where the amount of the cost is to be assessed on an indemnity basis, the Court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.
  • Under indemnity basis, there is no requirement that the costs should be proportionate, contrary to the standard basis assessment.

For further details and Guidance please speak to Legalally’s experienced Lawyers who will help you throughout your legal dispute.

EX341 - I have been asked to be a witness, what do I do?

Why have I been asked to be a witness? You have been asked to be a witness because you have something to tell (called ‘evidence’) which may help a person (a ‘party’) who is making or disputing a claim made through a civil court.
Depending on the type of claim, the person who started it can be called the ‘claimant’, ‘petitioner’ or ‘applicant’, and the person disputing it the ‘defendant’ or ‘respondent’.

A civil court deals with non-criminal matters, for example:

  • family proceedings, including divorce and adoption;
  • claims for debt; and
  • claims for damages to compensate for personal injury or damage to property.

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EX342 - Coming to a court hearing?

What can I do if I want to ask a question about my case? You can:

  • phone the court any weekday;
  • write to the court; or
  • if the matter is urgent, send a fax to the court.

But always tell the court your claim number and the date of your hearing if you have one.
Remember that court staff cannot give you legal advice or answer questions like:

  • Will I win my case?
  • What evidence will I need?

You should get legal advice from a solicitor, a law centre or an advice agency. 

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Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.