Written by: Ruth Simoné Gray
30 November 2024
Types Of Costs Orders and Enforcement
Litigation can be both emotionally and financially taxing. Beyond the stress of arguing your case in court, the question of who will bear the associated costs can significantly influence your peace of mind. Whether you’re involved in a contractual dispute or facing a family law matter, understanding the various types of legal cost orders—and what they mean for your finances—is crucial.
At Burger Huyser Attorneys, we have extensive experience in guiding clients through every step of the litigation process, including advising on cost orders and ensuring their enforcement, so that you can move forward with clarity and confidence.
How Are The Costs Of The High Court And The Costs Of The Magistrates Court Taxed?
Before delving into the specific types of cost orders, it’s crucial to understand that the taxation of costs varies based on whether the High Court or the Magistrate’s Court hears the matter. Since tariffs and scales vary between these courts, the ultimate amount awarded to a successful party can differ significantly.
What Are The Different Types Of Cost Orders That One Can Obtain?
Various types of cost orders can be sought in either application and/or action proceedings. The costs awarded are taxed and are compiled following the latest applicable tariff. This means that even if costs are awarded in your favour, they are taxed, and as a result, you will only receive a portion of the legal costs spent on a matter. Some of the costs that can be awarded in a matter are as follows:
- Party and party costs;
- Attorney and client costs;
- Attorney and own client costs;
What Are Party And Party Costs?
Explanation: Party and party costs are costs that are generally awarded against the unsuccessful party on the lowest tariff scale. Such costs are not inclusive of all costs that would have been incurred to bring the matter to court and, as such, are usually limited to costs that are considered necessary for obtaining the result sought. This would thus generally not include the costs of counsel or other disbursements that are not considered necessary.
Implication: Even if you win your case, party and party costs don’t fully reimburse you. Instead, they offer a partial recovery that helps offset some legal expenses.
What Are Attorney And Client Costs?
Explanation: Attorney and client costs are costs that the attorney is entitled to recover from the client for the disbursements incurred by the attorney on behalf of the client for the services rendered to the client. Such costs are payable to the attorney and are not dependent on a costs order being made by the court hearing the matter. This scale remains the same as the party and party-scale, but the successful litigant is entitled to include a wider variety of legal fees in the bill of costs. Although the bill of cost will, as a result, be higher than party and party costs, it is still not the full amount of the fees a client would have paid to the attorney.
Implication: These costs ensure the attorney is compensated for essential work and expenses, regardless of the case’s outcome, provided the fees are reasonable.
What Are Attorney And Own Client Costs?
Explanation: Attorney and own client costs are costs to which the attorney is entitled in respect of the client fee arrangements and the mandate that was signed by the client. This scale is one of the highest, as it is considered to be punitive, as it is the cost to which the client agreed to pay the attorney and is not in accordance with the court tariff. These are all of the costs that a client would have incurred with the chosen attorney, inclusive of disbursements, but as dictated by the applicable tariff.
Implication: This scale often covers most, if not all, of the expenses you’ve incurred. However, a court would be reluctant to make such a costs order, but will do so in circumstances where the court is dissatisfied with the conduct of one of the litigating parties in handling a matter or failing to handle a matter adequately.
What Are The Costs In The Cause?
Explanation: Costs in the cause mean that the costs will be taxed at a later stage, typically at the end of the litigation. This is generally a second option to wasted costs, which are awarded where, for example, an opposition opposes a matter at court and the other party has to incur costs for the litigants to appear on the day for the matter to be heard. The party that is prejudiced by such conduct can request that the other party pay the wasted costs of the appearance, which are generally always on a party and party scale. The other alternative would be to request that the costs be costs in the cause to avoid having a costs order granted against one of the litigating parties when the matter is yet to be finalised.
Implication: Costs in the cause allow the court to handle cost disputes at a more appropriate stage in the proceedings, ensuring fairness once the full context of the case is known.
Will You Be Able To Recover Your Full Costs Spent On The Litigation Process?
Even if a court grants you a cost order, the process of actually receiving payment involves several steps:
- Taxing the bill of costs: Generally speaking, no. Once costs are awarded in a litigious matter, then a bill of costs has to be drawn up by the successful party and sent to the unsuccessful party for payment. The unsuccessful party will then have an opportunity to oppose the bill of costs or to make payment in respect thereof.
- Taxation hearing: A taxation date needs to be obtained from the court for the bill of costs to come before the taxing master. A taxing master reviews the bill and decides which items are fair. The final “tax bill” represents the amount payable.
- Enforcement: Once the taxing master has taxed the bill of costs, the unsuccessful litigant will need to make payment of the taxed bill amount that the successful litigant was granted. If the losing party fails to pay, you can enforce the judgment by requesting a warrant of execution. A sheriff may then attach and sell assets to satisfy the debt.
What Can You Do If The Unsuccessful Party Does Not Pay Your Costs As Granted By The Taxing Master?
In this regard, you can approach your attorney of record to draw up a warrant of execution and have the same issued at court to the value of the taxed bill of costs that was awarded. The Sheriff will then attend at the premises of the unsuccessful litigant and will serve the warrant of execution, attaching movables to the value of the taxed bill, and will sell such items on auction in order to recoup the monies for the successful litigation.
How Can You Protect Your Interests?
Practical tips on how to protect your interests:
- Obtain a court order: Without a formal order, recovering arrears, maintenance, or costs can be difficult.
- Get clear consent: If costs are related to schooling or other child-related matters, ensure both parents’ consent to avoid future payment disputes.
- Consult a professional: Understanding the intricacies of costs is complex. Professional legal advice can help maximise your recovery.
Dealing with legal costs can be intimidating, particularly after the emotional investment and time spent on litigation. Knowing the difference between party and party costs, attorney and client costs, attorney and own client costs, and costs in the cause helps you better anticipate the financial outcome of your legal journey. With proper guidance, you can navigate the taxation process, enforce payment, and ultimately safeguard your rights and financial interests.
Real-Life Application: Whether you’re settling a divorce, resolving a commercial dispute, or finalising a property transaction, understanding cost orders ensures you remain informed and empowered. Having a clear picture of what you can realistically recover helps you plan for the future and minimise surprises.
If you need assistance understanding a cost order, enforcing payment, or ensuring a fair taxation process, Burger Huyser Attorneys is here to help. Our seasoned legal professionals can guide you through every step, from initial consultation to final recovery. Contact us today to secure our legal support services in safeguarding your financial interests and achieving the best possible outcome for your matter.
Contact Burger Huyser Attorneys, and book a consultation.
To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223
