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
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.
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
(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.
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
| Step | Position, unless the Court otherwise orders | Rule |
|---|---|---|
| Amending a pleading without leave | The amending party shall pay the costs of and occasioned by the amendment | r 12 |
| Applying for an extension of time | The applicant shall pay the costs of and occasioned by the application, or an order made on or in consequence of the application | r 14 |
| Continuing an interlocutory injunction | An order as to the costs of the further injunction shall … include the costs of the first injunction | r 22 |
| Discovery before suit | The Court may include in any costs order the Order 3 costs, including payments of conduct money and payments on account of expenses and loss | r 21 |
| Disobedience to a rule, judgment or order | The Court may order him to pay the costs of any other person occasioned by the failure | r 20 |
| Discontinuance without leave | The 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 discontinuance | r 17 |
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.
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
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.
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
- Include costs in the relief sought in the notice of motion.
- 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.
- Ask for them to be payable immediately under Rule 5(2) where the application should not have been necessary.
- Check the minute. Rule 8: a party shall not be entitled to recover any costs … except under an order of the Court.
- 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.
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
- National Court Rules 1983 — O 3; O 9 rr 29, 31; O 22 rr 5, 8, 9, 11–17, 20–22, 24, 65
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.