COST EXAM OUTLINE

THE BASES ON WHICH COST PAYABLE IS ASSESSED

The purpose of the cost order is to reimburse the party cost he actually incurred and not
more than what has been incurred by him. This is known as the INDEMNITY
PRINCIPLE.

There are two bases on which cost payable by a party may be assessed:

i. Indemnity Basis

This is where the attorney is entitled to recoup from his client the entire
amount charged. However, the client may challenge the fess of his attorney
by getting an assessment done to determine whether the amount charged by
the attorney is reasonable. The court may order one party to pay another
party on an indemnity basis.

ii. Party and Party Costs – Standard Basis

This occurs when the court orders cost to be recovered by one party from the
other. The basis of assessment is to determine what is reasonable of the total
charge to be recovered from the other party and not what is for the attorney to
charge. This amount is usually less than the amount that would have been
assessed on an indemnity basis.

ORDERS FOR COST

The general rule is that “cost follows the event” . This means that the successful
party is entitled to recover costs from the unsuccessful party. However, this is
discretionary.

The court may take the following circumstances into account when deciding who should
pay costs:

i. The conduct of the parties both before and during the proceedings.

ii. Whether the party has succeeded on particular issues, even if that party has
not been successful in the whole proceedings;

iii. Any payment into court or offer to settle made by a party which is drawn to
the court’s attention.

iv. Whether it was reasonable for a party to i. raise a particular issue and or ii. To
raise a particular allegation.
v. The manner in which the party has pursued i. party’s case; ii. A particular
allegation ; or a particular issue.

vi. Whether a claimant who has succeeded in his claim, in who or in part ,
exaggerated his or her claim; and

vii. Whether claimant gave reasonable not of intention to issue a claim.

viii. The orders which the court may make under this rule include orders that a
party must pay-

a. A proportion of another party’s costs;

b. A stated amount in respect of another party’s costs;

c. Costs from or until a certain only;

d. Costs incurred before proceedings have begun;

e. Costs relating to particular steps taken in the proceedings;

f. Costs relating only to a distinct part of the proceedings;

g. Costs limited to basic costs in accordance with rule 65.10; and

h. Interests on costs from or until a certain date, including a date before

judgment.

TYPES OF COSTS ORDERS

1. Cost to the Claimant

In this order, the claimant is entitled to receive costs from the Defendant(s). On
interlocutory application, the order may be expressed as “Costs to the claimant in
any event”. This indicates that even if the Claimant is unsuccessful at trial/or
appeal, they should still recover costs in the application.

2. Cost to the Defendant

Same as above but ‘Claimant’ and ‘Defendant’ are reversed.

3. Cost in the Claim

This is suitable in interlocutory application only as is commonly made at the case

management conferences and pre-trial reviews. This indicates that the party in
whose favour the court makes an order for costs and the end of the claim will be
 entitled also to its costs in respect of the application in which the order was
made.

4. Cost in the Application

This is applicable where an order is being in the course of hearing an application

and the court is of the view that these costs should be paid to the person who
ultimately becomes entitled to receive costs of the application.

5. Claimant’s Costs in the Claim

This indicates that if the Claimant ultimately becomes entitled to costs of the
claim, it will receive the costs of the application in respect of which this order was
made. If, however, the Defendant ultimately becomes entitled to costs of the
claim, no one will be entitled to any cost for the application.

6. Costs in the Appeal

Similar to costs in the claim but the difference is that this is only applicable to the
hearing of an appeal rather than a claim heard at first instance.

7. Costs in here and below

Used in the appeal where the one costs order is to be made in respect of both
proceedings before the appellate court and the proceedings before the lower
courts whose order/judgement was appealed; this overturns any contrary costs
order.

8. Costs Reserved

This means that the decision as to costs is to be determined later.

9. Cost Thrown Away

This type of order is made where costs have been unnecessarily incurred by
reason of actions that have become the subject of the application.

10. Wasted Costs

This arise where an attorney is ordered to pay costs that might otherwise have
been awarded against his client – for his conduct.

11. No order as to Costs/Each Party bears its own Costs.

 MULTIPLE DEFENDANTS

Where there are multiple defendants the court will order costs to the Claimant if he is
successful. However, where the Claimant succeeds against only one Defendant; the
Court may make provision for that one Defendant to bear costs while the Claimant
would pay the cost to the unsuccessful party.

There are two types of orders the court can make in any given situation with multiple
defendants such as the “Bullock” or “Sanderson” order.

The Bullock Order

The Claimant is required to pay the costs to the successful Defendant but recovers from
the unsuccessful Defendant both the Claimant’s cost and the reimbursement of the
costs the Claimant is required to pay the successful Defendant.

The Sanderson Order

The claimant is not required to pay any costs. The burden is on the unsuccessful
Defendant to pay the costs of both the Claimant and the successful Defendant. This
order is more appropriate where the Claimant is insolvent.

Ancillary Claims
Where the defendant has made an ancillary claim and it is successful, the court in
determining what order would have to go back to the general rule that cost follows the
event as between parties and their respective claims (including ancillary claims).

However, the court may consider awarding of a Sanderson order if a relevant party is
insolvent.

Assessment / Agreement of Costs

The amount recoverable is determined by what is reasonable. The Court will take into
account factors such as importance of the matter, the time reasonable spent on it, the
novelty, weight and complexity of the matter, and whether the matter required a senior
or specialist attorney.

There are various ways to determine the amount of costs to be awarded:

1. Agreement: Parties are encouraged to agree the amount payable in respect of a
costs order and such agreement can override the result of any other means of
ascertaining the cost payable.
2. Fixed Costs: These are fixed cost that are set out the Appendices of the Civil
Procedure Rules.
3. Basic Costs: These are recoverable on a precise calculation and can be recovered
upon the entering of a final judgement.
4. Taxation: this is the process where the amount payable is assessed by the Court
as being reasonable. This process is particularly attractive because of the perceived
insufficiency of the amounts stated as basic cost.
The procedure is as follows:

i. The party entitled to cost will prepare, file and serve a bill of costs.

ii. The unsuccessful party must file points of dispute within 28 days.

iii. If no point of dispute is filed, then a default costs certificate is issued.

However, if it is filed, notice of taxation is issue, a date for taxation hearing
will be set and after the determination of the hearing a final cost certificate
will be issued.

5. Enforcement and Interest

Cost orders may be enforced the same way as any money judgement. Costs also
attract interest from the date the operative costs order was made. Interest runs
while the costs have not yet been assessed or agreed. The date of final judgement
is the relevant.
In Jamaica , cost awarded in interlocutory applications are not recoverable until final
judgement and it does not attract interest until the award of final judgement.