HomeNational CourtCosts

Who Pays the Costs of an Interlocutory Application?

Unless the Court otherwise orders, the costs of any application or other step are dealt with in accordance with Order 22 or with the order relating to the general costs of the proceedings. But the Court may order costs at any stage, and may require them to be paid immediately even though the case continues.

The National Court practice series, no. 240 · Costs · 5 min read

Most costs disputes in a running case are about interlocutory applications. Order 22 of the National Court Rules 1983 deals with them in several places.

Rule 13

Interlocutory application

Subject to this Order, 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.

So the default is that they follow the general costs

Absent a specific order, the costs of a motion are absorbed into the general costs of the proceedings — which under Rule 11 follow the event unless the Court thinks some other order should be made.

That is why asking for costs on the motion, and having the order recorded, matters.

Rule 5

At any stage — and payable immediately

(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 immediate order changes the economics of a motion

Ordinarily an interlocutory costs order is quantified and paid at the end. Under sub-rule (2) the Court may require payment immediately.

Taxation can follow at once: Rule 9(1)(a) allows costs to be taxed without any order directing taxation where an order of the Court directs the payment of costs, and Rule 9(1)(c) where a motion is refused with costs.

And Rule 9(2): where 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.

Where the Rules fix the answer

Costs of specific interlocutory steps
StepPosition, unless the Court otherwise ordersRule
Amending a pleading without leaveThe amending party shall pay the costs of and occasioned by the amendmentr 12
Applying for an extension of timeThe applicant shall pay the costs of and occasioned by the application, or an order made on or in consequence of the applicationr 14
Continuing an interlocutory injunctionAn order as to the costs of the further injunction shall … include the costs of the first injunctionr 22
Discovery before suitThe Court may include in any costs order the Order 3 costs, including payments of conduct money and payments on account of expenses and lossr 21
Disobedience to a rule, judgment or orderThe Court may order him to pay the costs of any other person occasioned by the failurer 20
Discontinuance without leaveThe discontinuing party shall … pay the costs of the party against whom the discontinued claim is made, occasioned by the discontinued claim and incurred before service of notice of the discontinuancer 17
Rules 12 and 14 do not depend on winning

A party who amends a pleading without leave, or seeks an extension of time, pays the costs of that step whatever the outcome of the case, unless the Court orders otherwise.

The practical response is to seek the other side’s consent. An agreed amendment or extension avoids both the application and its costs.

Rule 22 is easily overlooked

Where the Court grants an interlocutory injunction and afterwards grants a further interlocutory injunction continuing the first, with or without modification, the costs order on the second shall, unless the Court otherwise orders, include the costs of the first injunction.

So the costs of the original application are carried forward automatically. A party who succeeded on the first application and lost on the continuation should ask the Court to order otherwise.

Rules 15, 16 and 20

Three conduct-based provisions

Rule 15 — a party who serves a notice disputing a fact under Order 9 Rule 29(2), where the fact is afterwards proved, shall, unless the Court otherwise orders, pay the costs of proof.

Rule 16 — the same where a party disputes the authenticity of a document under Order 9 Rule 31(2) and it is afterwards proved.

Rule 20 — where any person fails to comply with the Rules or any judgment or order, the Court may order him to pay the costs of any other person occasioned by the failure.

Use the notices

Rules 15 and 16 give real force to notices to admit under Order 9. Serving one puts the other side to an election: admit, or bear the costs of proof if the point is established.

Practical points

Five things to do on every motion
  1. Include costs in the relief sought in the notice of motion.
  2. Ask for them at the end of the hearing, and say on what basis — party and party under Rule 24 is the default; anything more must be ordered.
  3. Ask for them to be payable immediately under Rule 5(2) where the application should not have been necessary.
  4. Check the minute. Rule 8: a party shall not be entitled to recover any costs … except under an order of the Court.
  5. Consider costs in the cause. Where the application is a normal incident of the litigation, an order that the costs follow the general costs may be the sensible outcome — and is what Rule 13 produces by default.
Where the fault is the lawyer’s

Rule 65(2) provides that a solicitor is responsible for default where proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made because of a failure to attend in person or by a proper representative, to file any document which ought to have been filed, or otherwise to proceed. See costs against a lawyer.

Sources

Check the section yourself

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.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.