Clients always ask their attorney to reclaim the costs that they are paying the attorney from the party who they have sued, or intend to sue. While your attorney will include a request for costs in the Summons that they serve on the Defendant, they can never guarantee that all of the costs will be recovered from the Defendant.

The reason for this is that even when your case is successful, the court will, in most cases, order what is called costs on a “party and party scale.” Party and party costs are governed by the tariff applicable to the court in which your case is being run. For example, if your matter falls within the jurisdiction of the Magistrate’s Court, the fees you can claim from the Defendant (assuming your case is successful) will be capped by the tariff applicable to the Magistrate’s Court.

Most attorneys will however charge at a rate higher than the tariff. This means that the fees which an attorney charges his client (ie attorney and client costs) are higher than what the court allows the successful party to recover from the unsuccessful party.

Also, party and party costs are limited to work that the attorney must do to move the matter forward. Only work which is furthering the matter and has been reasonably done to that end can be claimed on a party and party scale. However in most cases an attorney and their client will, in the interests of being thorough, engage with each other far more often than what is strictly speaking reasonable to move the matter forward.

Costs are also generally only awarded at the conclusion of a matter, whereas many attorneys will agree with their clients to submit interim statements of account to cover disbursement costs and the fees for work carried out in the billing period. Only at the end of the matter will the party and party fees actually be recovered from the unsuccessful party.

It is important to ask your attorney to discuss the costs aspect of litigation with you and come to an understanding regarding -the manner in which the case will be dealt with. Litigation can be an exercise in patience and objective decision-making and it is best that you maintain an open line of communication with your attorney.

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