Order 22 of the National Court Rules 1983 governs costs. Rule 3 sets its reach: it applies to and in respect of costs payable or to be taxed under any order of the Court or under these Rules and costs to be taxed in the Court under any Act.
Rule 11
If the Court makes any order as to costs, the Court shall, subject to this Order, order that the costs follow the event, except where it appears to the court that some other order should be made to the whole or any part of the costs.
The rule operates if the Court makes any order as to costs. It then requires costs to follow the event — the successful party recovers — except where it appears to the court that some other order should be made, and that exception may apply to the whole or any part of the costs.
So the general rule is a starting point with a broad discretion built into it, and costs can be split issue by issue.
Rule 8
Subject to this Order, a party to proceedings in the Court shall not be entitled to recover any costs of or incidental to the proceedings from any other party to the proceedings except under an order of the Court.
Winning does not by itself produce a right to costs. There must be an order. Ask for costs when judgment is given, and check that the minute records the order.
Costs may be taxed without any order directing taxation where —
(a) an order of the Court directs the payment of costs; or (b) proceedings are dismissed with costs; or (c) a motion is refused with costs; or (d) a party may tax costs on the discontinuance of proceedings; or (e) a party may tax costs on the acceptance of money paid into Court.
And by sub-rule (2), where proceedings are dismissed with costs or a motion is refused with costs and the costs are not paid within four days after the signing of a certificate of taxation, the party entitled may enter judgement for the taxed costs.
Rule 5
(1) The Court may, in any proceedings, exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings.
(2) Where the Court makes an order in any proceedings for the payment of costs, the Court may require that the costs be paid immediately, notwithstanding that proceedings are not concluded.
An interlocutory costs order does not have to wait for the end of the case. Where the Court orders costs to be paid immediately, they are payable then — which changes the practical calculus on contested applications.
Where the Rules fix the answer
| Situation | Who pays, unless the Court otherwise orders | Rule |
|---|---|---|
| Amending a pleading without leave | The amending party pays the costs of and occasioned by the amendment | r 12 |
| Applying for an extension of time | The applicant pays the costs of and occasioned by the application | r 14 |
| Non-admission of a fact | Dealt with by r 15 | r 15 |
| Non-admission of a document | Dealt with by r 16 | r 16 |
| Discontinuance | The other party may tax costs | r 17 |
| Payment into Court | Dealt with by r 18 | r 18 |
| Offer of contribution | Dealt with by r 19 | r 19 |
| Disobedience to a rule, judgment or order | Dealt with by r 20 | r 20 |
| Discovery before suit | Dealt with by r 21 | r 21 |
| Injunction | Dealt with by r 22 | r 22 |
| Default judgment | Costs shall not be taxed but shall be in accordance with Table 2 of Schedule 2 | r 10 |
Both put the costs on the party seeking the indulgence, unless the Court otherwise orders — whether or not that party ultimately wins the case. That is a practical reason to seek consent to an amendment or an extension rather than to apply.
Rule 13 supplies the general position for other steps: the costs of any application or other step in any proceedings shall, unless the Court otherwise orders, be paid and otherwise dealt with in accordance with the provisions of this Order or the provisions of any order relating to the general costs of the proceedings.
How much is recovered
Party and party — Subdivision C, Rule 24. The ordinary basis. See party and party costs.
Common fund — Rule 32; and trustee — Rule 33, where trustee is defined as including an executor of a will and an administrator of the estate of a deceased person.
Solicitor and client — Subdivision E, Rule 35. See solicitor and client costs.
And by Rule 36 there is a scale of costs, with Rule 37 dealing with probate.
Rule 1: “bill” means bill of costs; “certificate” includes allocatur; “contentious business” includes all actions, suits and proceedings; and “taxed costs” means costs taxed in accordance with this Order.
Rule 7 deals with costs in other courts, and Rule 4(2) provides that the Order has effect subject to these Rules and subject to any Act — so a specific statutory costs provision prevails. See costs against the State.
Sources
- National Court Rules 1983 — O 12 Div 3, r 32; O 22 rr 1–22, 24, 32, 33, 35–37, Sch 2 Table 2
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.