Costs, expenses incurred in litigation or professional transactions, consisting of money paid for stamps, etc., to the officers of the Court, or to the counsel and solicitors, for their fees, etc.
Costs in actions are either between solicitor and client, being what are payable in every case to the solicitor by his client, whether he ultimately succeed or not; or between party and party, being those only which are allowed in some particular cases to the party succeeding against his adversary, and these are either interlocutory, given on various motions and proceedings in the course of the suit or action, or final, allowed when the matter is determined.
Neither party was entitled to costs at Common Law, but the Statute of Gloucester (6 Edw. 1, c. 4), gave cots to a successful plaintiff, and 2 & 3 Hen. 8, c. 6, and 4 Jac. 1, c. 3, to a victorious defendant; see Garnett v. Bradley, (1878) 3 App Cas 944.
In proceedings between the Crown and a subject the general rule is that the Crown neither receives nor pays costs, but thee are many statutory exceptions, as, for example, in petitions of right [(English) Petitions of Right Act, 1860 (23 & 24 Vict. c. 34), s. 12] and in revenue cases, where the position is as between subject and subject. See R. v. Archbishop of Canterbury, (1902) 2 KB 571; Thomas v. Pritchard, (1903) 1 KB 212; Johnson v. King,1904 AC 824; Rwland v. Air Council, 1923 WN 72; Re Carbonit, 1923, WN 208.
Several Acts (English) have also been passed to restrain the bringing of vexatious actions, and needless constliness in litigation. See (43 Eliz. C. 6, s. 2; 22 & 23 Car. C, c. 9; 8 & 9 Wm. 3, c. 11, s. 4; 3 & 4 Vict. c. 24); modern enactments aiming at this end are the County Courts Act, 1934, s. 47, reproducing s. 11 of the County Courts, 1919, as amended by s. 20 of the Administration of Justice Act, 1925, which substituted a new s. 116 of the County Courts Act, 1888; the Slander of Women Act,1891 (54 & 55 Vict. c. 51); and the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61).
In equity costs rested entirely in the discretion of the Court, for the prima facie claim of the successful litigant to costs might be rebutted by the particular circumstances of the case, and it was for the court to decide whether those circumstances were or were not sufficient to rebut the claim. See Morgan and Wurtzburg on Costs; Johnson on Costs.
High Court Costs.--By (English) R.S.C. 1883, Ord. LXV., r. 1, 'the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court'; but there is a saving for the right of a trustee, mortgage, or other person to costs out of a particular estate or fund. The discretion given by this rule is made subject by the Judicature Act, 1925, s. 50, replacing the Judicature Act, 1890, s. 5, to the express provision of any other Act. The discretion conferred by the rule is very wide, but must be exercised judicially (see Sharpe v. Wakefield, 1891 AC 173, and cases referred to in the notes in Annual Practice to the abovementioned rule). For the cases in which a judge sitting without a jury can deprive a wholly successful defendant of costs, see Ritter v. Godfrey, (1920) 2 KB 47. As to what constitutes 'good cause,' see Roberts v. Jones, (1891) 2 QB 194, and notes to abovementioned rule in Annual Practice. The general rule is that the successful party gets his costs, The Ophelia, (1911) 46; Cooper v. Whittingham, (1880) 15 CD 501.
A plaintiff who makes several distinct claims in an action may be ordered to pay the defendant's costs of the issues upon which he faisl, Foster v. Farquhar, (1893) 1 QB 564; see also Reid, Hewitt & Co. v. Joseph, 1918 AC 717.
County Courts Act, 1934 (English) (c. 53), s. 47, regulates the costs of actions of contact or tort (s. 59, Admiralty proceedings) commenced in the High Court which could have been commenced in the County Court.
(1) Where an action is commenced in the High Court which could have been commenced in a County Court, then, subject to the provisions of sub-s. (3) and sub-s. (4) of this s.:--
(a) if the plaintiff recovers a sum less--
(i) in the case of an action founded on contract, than forty pounds; or
(ii) in the case of an action founded on tort, than ten pounds;
he shall not be entitled to any costs of the action.
(b) if the plaintiff recoversp--
(i) in the case of an action founded on contract, a sum of forty pounds or upwards, but less than one hundred pounds; or
(ii) in the case of an action founded on tort, a sum of ten pounds or upwards, but less than fifty pounds;
he shall not be entitled to any more costs of the action than those to which he would have been entitled if the action had been brought in a county court.
(2) When a plaintiff is entitled to costs on a county court scale only, the taxing master shall have the same power of directing on what county court scale and under what column in the scale costs are to be allowed, and of allowing any items of costs as the judge would have had if the action had been brought in a county court.
(3) In any such action as aforesaid, whether founded on contract or tort, the High Court or a judge thereof (or when the matter is tried before a referee or officer of the Supreme Court, that referee or officer) if satisfied:'
(a) that there was sufficient reason for bingeing the action in the High Court; or
(b) that the defendant or one of the defendants objected to the transfer of the action to the county court;
may make an order allowing the costs or any part of the costs thereof on the High Court scale or on such one of the county court scales and under such one of the columns in the scale as he may direct.
(4) If in any action the claim is for a debt or liquidated demand for a sum of twenty pounds or upwards, and--
(a) the defendant pays the amount claimed or a sum of not less than twenty pounds within the time limited in that behalf by the endorsement made on the writ in accordance with the rules of the Supreme Court; or
(b) the plaintiff, within twenty-eight days after the service of the writ, or within such further time as maybe allowed by the High Court or a judge thereof, obtains judgment in default of appearance or of defence for a sum of twenty pounds or upwards; or
(c) the plaintiff, within twenty-eight days after the service of the writ, or within such further time as may be allowed by the High Court or a judge thereof, obtains, under any rule of the Supreme Court providing for summary judgment without trial, an order empowering him to sign judgment for a sum of twenty pounds or upwards, either unconditionally or unless that sum is paid into court or to the plaintiff's solicitor:
the plaintiff shall, unless otherwise ordered by the High Court or a judge thereof, be entitled to costs on such scale as may be prescribed by the rules of the Supreme Court.
(5) This section applies only to the costs of the proceedings in the High Court, and shall have effect subject to the provisions of section fifty-nine of this Act (that section relates to costs in Admiralty proceedings).
(6) This section shall not apply in the case of any proceedings by the Crown.
The costs of an appeal are in the discretion of the court which hears the appeal, and as a rule follow the event of the appeal.
County Court Costs.--County Court costs of any action or matter are by s.113 of the County Courts Act, 1888 (if not otherwise provided for by that Act), to be paid by or apportioned between the parties in such manner as the Court shall think just, and in default of any special direction are to abide the event. See also County Court Rules, 1936, Ord. XLVII.
Cost in Criminal Cases.--The costs in (English) Criminal Cases Act, 1908 (c. 15), as amended by the Criminal Justice Administration Act, 1914 (c. 58),
s. 10(4), and the Poor Prisoners Defence Act, 1930 (c. 32), now contains all the provisions relating to this matter, and by ss. 1 and 2 provides as follows:'
1.--(1) The following courts namely,--
(a) a court of assize or a court of quarter sessions before which any indictable offence is prosecuted or tried, and
(b) a court of summary jurisdiction by which an indictable offence is dealt with summarily under the Summary Jurisdiction Acts, and
(c) any justice or justices before whom a charge not dealt with summarily is made against any person for an indictable offence (in this Act referred to as the examining justices)
may on any such proceedings by order direct the payment of the costs of the prosecution or defence or both in accordance with the provisions of this Act out of the funds of the county or county borough out of which they are payable under this Act (in this Act referred to as local funds).
(2) The costs which may be so directed to be paid are such sums as, subject to the regulation of the Secretary of State under this Act, appear to the court reasonably sufficient to compensate the prosecutor for the expenses properly incurred by him in carrying on the prosecution, and to compensate any person properly attending to give evidence for the prosecution or defence, or called to give evidence at the instance of the court, for the expense, trouble, or loss of time properly incurred in or incidental to the attendance and giving of evidence, and the amount of any costs so directed to be paid shall be ascertained as soon as practicable by the proper officer of the court.
(4) No expenses to witnesses, whether for the prosecution or defence, shall be allowed at a court of assize or quarter sessions before which any indictable offence is prosecuted or tried, if such witnesses are witnesses to character only, unless the court shall otherwise order.
2. As soon as the amount due to any person in respect of costs directed by a court of assize or a court of quarter sessions to be paid out of local funds has been ascertained, the proper officer shall make out and deliver to that person, or to any person who appears to the proper officer to be acting on behalf of that person, an order upon the treasurer of the county or borough out of the funds of which the costs are payable under this Act for the payment of that amount.
S. 6 also empowers the Court to order the convicted person to pay the costs of the prosecution, or in certain cases the prosecutor to pay the costs of an acquitted person.
S. 3 of the Poor Prisoners Defence Act, 1930, provides for costs where a defence certificate or legal aid certificate has been granted. These include in the case of a defence certificate, the fees of counsel and solicitor and the cost of a copy of the depositions, and in the case of a legal aid certificate, the fees of a solicitor. Other expenses properly incurred may be included.
See also Summary Jurisdiction Acts, 1848 and 1879, ss. 18 and 54 respectively, which give justices power to order the unsuccessful party to pay the costs of his opponent in both civil and criminal mattes within these Acts.
As to taxation of costs, see TAXATION.
As to charging order for solicitor's costs, see CHARGING ORDER. See also SCALES OF COSTS. As to costs as between the client and his own solicitor, see SOLICITOR.
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