Part 64 – Costs – General

Scope of this Part

64.1

1. This Part contains general Rules about costs and the entitlement to costs. Part 65 deals with the quantification of such costs.

Definitions and application

64.2

1. In this Part and in Part 65, unless the context otherwise requires –
   • “assessed costs” and “assessment” have the meanings given them by rules 65.11 and 65.12;
   • “budgeted costs” has the meaning given it by rule 65.8;
   • “costs” include a legal practitioner’s charges and disbursements, fixed costs, prescribed costs, budgeted costs or assessed costs;
   • “fixed costs” has the meaning given it by rule 65.4; and
   • “prescribed costs” has the meaning given it by rule 65.5
2. If costs of –
   1. a legal practitioner to his or her client;
   2. arbitration proceedings; or
   3. proceedings before a tribunal or other statutory body; are to be taxed or assessed by the court, they must be assessed in accordance with rule 65.12.
3. If in any enactment there is a reference to the taxation of any costs this is to be construed as referring to the assessment of such costs in accordance with rule 65.12, unless the enactment otherwise provides.

 Orders about costs

64.3

1. The court’s powers to make orders about costs include power to make orders requiring a party to pay the costs of another person arising out of or related to all or any part of any proceedings.

Costs where there is an appeal

64.4

1. The court hearing an appeal may make orders about the costs of the proceedings giving rise to the appeal as well as the costs of the appeal.

Entitlement to recover costs

64.5

1. A person may not recover the costs of proceedings from any other party or person except by virtue of –
   1. an agreement between the parties;
   2. an order of the court; or
   3. a provision of these Rules.

Successful party generally entitled to costs

64.6

1. Where the court, including the Court of Appeal, decides to make an order about the costs of any proceedings, the general rule is that it must order the unsuccessful party to pay the costs of the successful party.
2. The court may however order a successful party to pay all or part of the costs of an unsuccessful party or may make no order as to costs.
3. This rule gives the court power in particular to order a person to pay –
   1. costs from or up to a certain date only;
   2. costs relating only to a certain distinct part of the proceedings; or
   3. only a specified proportion of another person’s costs.
4.  The court may not make an order under paragraph 3(a) or 3(b) unless it is satisfied that an order under paragraph 3(c) would not be more practicable.
5. In deciding who should be liable to pay costs the court must have regard to all the circumstances.
6. In particular it must have regard to –
   1. the conduct of the parties both before and during the proceedings;
   2. the manner in which a party has pursued –
      1. a particular allegation;
      2. a particular issue; or
      3. the case;
   3. whether a party has succeeded on particular issues, even if the party has not been successful in the whole of the proceedings;
   4. whether it was reasonable for a party to –
      1. pursue a particular allegation; and/or
      2. raise a particular issue; and
   5. whether the claimant gave reasonable notice of intention to issue a claim.
7. Rule 65.11 sets out the way in which the court must deal with the costs of procedural hearings other than a case management conference or pre-trial review.

Two or more parties having same interest

64.7

1. If two or more parties having the same interest in relation to proceed­ings are separately represented the court may disallow more than one set of costs.

 Wasted costs orders

64.8

1. In any proceedings the court may by order –
   1. direct the legal practitioner to pay; or
   2. disallow as against the legal practitioner’s client; the whole or part of any wasted costs.
2. In this rule –
   • “wasted costs” means any costs incurred by a party –
     1. as a result of any improper, unreasonable or negligent act or omission on the part of any legal practitioner or any employee of the legal practitioner; or
     2. which, in the light of any act or omission occurring after they were incurred; the court considers it unreasonable to expect that party to pay.

Court’s powers in relation to wasted cost orders

64.9

1. The court may make an order under this Rule where –
   1. a party or his legal representative, fails to comply with a Rule, practice direction or court order; or it appears to the court that the conduct of a party or his legal representative, before or during the proceedings, was unreasonable or improper.
2. Where paragraph (1) applies, the court may –
   1. disallow all or part of the costs which are being assessed; or
   2. order the party at fault or his legal representative to pay costs to the court or which he has caused any other party to incur; or both.
3. Where –
   1. the court makes an order under paragraph (2) against a legally represented party: and
   2. the party is not present when the order is made, the party’s legal practitioner receives notice of the order.

Costs against person who is not a party

64.10

1. This rule applies where
   1. an application is made for; or
   2.  the court is considering whether to make; an order that a person who is not a party to the proceedings nor the legal practitioner to a party should pay the costs of some other person.
2. Any application by a party must be on notice to the person against whom the costs order is sought and must be supported by evidence on affidavit.
3. If the court is considering making an order against a person the court must give that person notice of the fact that it is minded to make such an order.
4. A notice under paragraph (3) must state the grounds of the application on which the court is minded to make the order.
5. A notice under paragraph (2) or (3) must state a date, time and place at which that person may attend to show cause why the order should not be made.
6. The person against whom the costs order is sought and all parties to the proceedings must be given 14 days notice of the hearing.