The question has four parts, and only one of them is within a litigant’s control.
What you are paying for
| Cost | Payable to | When |
|---|---|---|
| Court fees — filing, sealing, issuing | The Registry | As each step is taken |
| Your lawyer’s fees | Your lawyer | Throughout |
| Disbursements — service, transcripts, experts, travel, counsel | Third parties | As incurred |
| The other side’s costs | The opposing party | If you lose |
Under Order 22 Rule 11 of the National Court Rules 1983, if the Court makes any order as to costs it shall … order that the costs follow the event, except where it appears to the court that some other order should be made.
So a losing party ordinarily pays the winner’s costs as well as their own. Advise on that before the writ is filed, not after judgment.
The shortfall
Costs recovered from the other side are taxed on the party and party basis unless otherwise ordered. On that 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 — Order 22 Rule 24(2).
What you owe your own lawyer is taxed on the solicitor and client basis, where all costs shall be allowed except as specified — Rule 35(1).
The gap between the two is normal. See party and party costs and solicitor and client costs.
Order 22 Rule 8: a party shall not be entitled to recover any costs of or incidental to the proceedings from any other party … except under an order of the Court. Ask for costs, and check the minute.
Five provisions that catch litigants out
- Small judgments. Order 22 Rule 25: where in an action for tort or contract the plaintiff recovers less than K10,000.00, 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. Choose the forum carefully — see the right court.
- Amendments and extensions. Rules 12 and 14: the party amending a pleading without leave, or seeking an extension of time, pays the costs of and occasioned by that step — win or lose.
- Payment into Court. Rule 18(3): where the plaintiff recovers less than the amount so paid in, the plaintiff has costs to the date of payment in but shall be ordered to pay all the costs of the defendant … from and after the date of such payment into Court. See payment into Court.
- Putting the other side to proof. Rules 15 and 16: a party who disputes a fact or the authenticity of a document, and is then proved wrong, shall … pay the costs of proof.
- Bad faith in mediation. Order 2 Rule 11(2)(e) of the ADR Rules 2022 allows costs on an indemnity or lawyer and client basis. See bad faith.
Two further charges
Since 1 September 2022, Order 2 Rule 2 of the ADR Rules 2022 means most proceedings go to mediation after the defence stage. That brings two costs —
The ADR Service processing fee, payable in equal shares before the mediation: under Schedule 3, K400 per day where the claim is worth K10,001–K50,000, and K600 per day where it exceeds K50,000. The State is exempt.
The mediator’s fees, where an external mediator is appointed — reasonable fees and outgoings apportioned between the parties. Where a party is impecunious, an internal mediator may be appointed instead. See who pays for the mediation.
The third category
Service — and where a defendant is hard to find, the cost of substituted service, including newspaper advertisement.
Transcripts — obtained on a search under Order 2 Rule 16 on payment of the prescribed fee. On an appeal the burden is heavier: the appellant compiles the Appeal Book and the lawyer must have handwritten transcripts typed by the lawyer and certified. See transcripts.
Experts — often the largest single disbursement in a substantial case.
Counsel — and note Order 22 Rule 26: the fees of a second lawyer or overseas counsel may be allowed on taxation only if, and to the extent that, they are certified for by the trial Judge.
Witness expenses — conduct money on a summons, and travel and accommodation where witnesses are provincial.
Order 22 Rule 49(4): a disbursement or counsel’s fee may be included in a bill though unpaid, but the bill shall state that the disbursement or fee has not been paid — and on taxation it shall not be allowed unless paid before the taxation is completed.
So budget for paying counsel and experts before the taxation, not out of what is recovered.
What actually reduces it
- Choose the right court. Rule 25 penalises over-shooting.
- Plead properly the first time. Amendments cost money under Rule 12.
- Admit what is true. Rules 15 and 16 make disputing provable facts expensive.
- Take mediation seriously. A settlement at mediation avoids the whole trial — and bad faith attracts indemnity or lawyer and client costs.
- Agree directions rather than applying. Rule 14 puts the cost of an extension application on the applicant.
- Keep the evidence proportionate. Only what is necessary or proper is recoverable.
The Office of the Public Solicitor is the first point of contact. Some matters carry no fee at all: Order 1 Rule 7(3) of the Criminal Practice Rules 2022 provides that no fee is payable for any application made under or in connection with these Rules, and Order 23 Rule 7(5) of the National Court Rules provides for free filing of human rights proceedings.
See free legal help.
Sources
- National Court Rules 1983 — O 22 rr 8, 11, 12, 14–16, 18, 24, 25, 35; O 23 r 7
- Alternative Dispute Resolution Rules 2022 — O 2 rr 2, 6, 7, 11; Sch 3
- Criminal Practice Rules 2022 — O 1 r 7(3)
Court filing fees are fixed by regulation and are not set out in the National Court Rules; check the current scale at the Registry. The figures in Order 22 Rule 25 and ADR Rules Schedule 3 are those in the instruments as published.
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.