Rule 24 of Order 22 of the National Court Rules 1983 supplies the default.
Rule 24
(1) Costs shall be taxed on a party and party basis unless the costs are to be taxed on the common fund basis under Rule 32 or on the trustee basis under Rule 33.
(2) On a taxation on a party and party basis, there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.
Not everything reasonably done, and certainly not everything actually charged. Only what was necessary or proper for the attainment of justice or for enforcing or defending the rights of the party.
The practical consequence is that a successful party with a costs order does not recover the full amount of its own lawyer’s bill. The shortfall between the party and party recovery and what the client owes the lawyer is normal, and clients should be told so at the outset.
Contrast solicitor and client costs under Rule 35, where all costs shall be allowed except as specified in this Rule.
This Subdivision applies to costs which are to be paid to a party to any proceedings either by another party to the proceedings or out of a fund.
Compared
| Basis | What is allowed | Rule |
|---|---|---|
| Party and party | All such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party | r 24 |
| Common fund | A reasonable amount in respect of all costs reasonably incurred — expressly a more generous basis than the party and party basis | r 32 |
| Trustee | No costs shall be disallowed, except so far as they should not, in accordance with the duty of the trustee as trustee, have been incurred, and should for that reason be borne by him personally | r 33 |
| Solicitor and client | All costs shall be allowed except as specified — excluding those of an unreasonable amount or unreasonably incurred, unless approved by the client | r 35 |
Rule 32 — the Court may order that costs be taxed on the common fund basis, which is a more generous basis than the party and party basis; the ordinary solicitor-and-client rules for a common fund apply whether or not the costs are in fact to be so paid.
Rule 33 — where a person who is or has been a party in the capacity of trustee is entitled to be paid costs out of a fund held in that capacity, the costs shall be taxed on the trustee basis. Trustee is defined in Rule 1 as including an executor of a will and an administrator of the estate of a deceased person — see administration.
Rule 25
(1) Where in an action for tort or contract the plaintiff recovers a sum of less than K10,000.00 — or an order for possession of goods worth less than that, or a combination of the two below that figure — the plaintiff shall, unless the Court or Judge otherwise orders, be entitled only to the costs he would have been entitled to if he had brought his action in the District Court.
(2) The plaintiff shall be treated as recovering the full amount recoverable in respect of his claim without regard to any deduction made in respect of contributory negligence on his part.
Winning a small claim in the National Court can leave a plaintiff with District Court costs against a National Court bill. Consider the forum before filing — see choosing the right court.
Sub-rule (2) is a fair qualification: a plaintiff whose damages were reduced for contributory negligence is judged on the full amount recoverable, not the net figure.
Rule 26
The fees, costs and expenses of (a) a second lawyer or (b) overseas counsel may be allowed on taxation only if, and to the extent that, they are certified for by the trial Judge.
“Overseas counsel” means a barrister or solicitor who is not resident in the country and normally carries on practice as a lawyer outside the country.
Without certification by the trial Judge, a second lawyer’s fees are simply not allowable on taxation. That is a matter to raise when costs are dealt with, not at taxation.
Compare the equivalent provision in election petitions: Schedule 3 Part 2 of the Election Petition Rules 2017 allows a second lawyer where the trial Judge has certified — see election petition costs.
Rule 27 deals with refreshers; Rule 28 with absence of counsel; Rule 29 with the six-hour period; and Rule 30 with counsel before the Registrar.
Rules 36 and 37
Rule 36(1): subject to this Rule, the provisions of Table 1 of Schedule 2 shall apply to the taxation of costs incurred in relation to proceedings commenced in the Court after the commencement date.
Rule 37 makes separate provision for probate. And on a default judgment, Rule 10(1) provides that the costs shall not be taxed but shall be in accordance with Table 2 of Schedule 2 — except where the judgment is one directed to be entered under Order 12 Rule 32.
Ask for the basis you want. Party and party is the default under Rule 24(1); a more generous basis must be ordered.
Ask for certification of second counsel at the hearing, under Rule 26.
Advise the client on the shortfall between party and party recovery and the actual bill.
On what happens next, see taxation and the bill of costs.
Sources
- National Court Rules 1983 — O 12 r 32; O 22 rr 1, 10, 23–30, 32, 33, 35–37, Sch 2 Tables 1 and 2
- Election Petition Rules 2017 — Sch 3 Part 2
The figure in Rule 25 is that in the Rules as published; check the current position before advising on forum.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.