It is important to have an understanding of the terms used in the Court room when decisions about costs are being made. This article by Samantha Lewis.
Litigation is both time consuming and expensive.
One of the most pertinent reasons to avoid litigation is cost - whether
the cost of legal representation or the cost to you of dealing with the
matter in your own time.
In some litigious matters, you may end up being
liable not just for your own costs, but the other party’s costs too.
Paying the other side’s costs
A Judge or Magistrate may order that you pay the
other party’s costs.
In the event you are ordered to pay the other
party’s costs, and you dispute the amount claimed by the other side
bcause you believe it is unreasonable, you can make an application for
the amount to be “assessed” by a Costs Assessor appointed by the
Supreme Court. The Cost Assessor will make a determination as to what
costs are reasonable (if any). You will be bound by the Cost Assessor’s
Costs in the Cause / Costs in the Proceedings
These two phrases are interchangeable.
They are used when determining the issue of costs
at an interlocutory or interim hearing: that is, the hearing of a
smaller application within subtantive matter, for example: the hearing
of a "Notice of Motion".
If the Plaintiff has made an interlocutory
application and is successful in that application, the Court will award
the Plaintiff, “costs in the cause” which means that if the Plaintiff is
successful in the final hearing, they will be able to claim their costs
of bringing the earlier, successful application, along with (usually)
their costs incurred in the substantive matter, up to and including the
If the Plaintiff is unsuccessful, the Court will
usually order the Plaintiff to pay the Defendant’s costs of the
The reasoning beind this rule is as follows: it is
the Plaintiff who has commenced the substantive proceedings and it is
the Defendant who is inconvenienced by the Plaintiff. Therefore, the
Defendant should never have to pay for the unsuccessful interlocutory
applications brought by the Plaintiff.
If the Court feels that it is not in a position to
make an order with respect to costs, maybe because even though the
application was unsuccessful, there was still merit in the claim and
only a final determination at the end of the matter will be able to
determine who should be awarded costs, the Court will order “Costs
This means that the Court, at the final hearing of
the matter, will need to determine who should be awarded costs for the
earlier hearing where costs were reserved. Sometimes the Court has to be
reminded of the earlier hearing, which may be some time before the
Before making any application to the Court, you
must consider the possibility that, in the event the application is
unsuccessful, you may be ordered to pay the other side’s costs of the
Watch this space for a further article on
the meaning of “party/party”, “solicitor/client” and “indemnity” costs.