South African law: The various cost order types

24 Aug 2023

Introduction

The question of costs is fundamental in South African legal processes as it decides who is accountable for paying the costs incurred during litigation. A cost order is a judgment the court makes regarding the payment of costs; it may be given in a number of different ways.

Party and party costs

In South African judicial procedures, party and party costs, commonly called “ordinary costs”, are the most typical cost order. The prevailing party in litigation receives these costs to pay for their reasonable legal expenses. The litigants taking part in the lawsuit are called “parties”.

An example of party and party costs in a civil dispute between Company A and Company B over a breach of contract. If the court finds in favour of Company A, the court may order Company B to pay the party and party costs incurred by Company A during the litigation.

Attorney and client costs

The costs associated with attorneys and clients, commonly called “own client costs”, go beyond party and party expenditures. These expenses cover the actual expenses incurred by the victorious party, as determined by the parties and their attorneys. In some situations, such as when the opposing party acted unreasonably or in bad faith, the court may grant attorney and client costs.

An example of attorney and client costs would be if a plaintiff brings a defamation case against an individual and the defendant’s legal team unreasonably prolongs the trial with unnecessary motions. The court may order the defendant to pay the plaintiff’s attorney and client costs in addition to the party and party costs.

Cost de bonis propriis (wasted costs) 

A party incurs wasteful costs when their attorneys cause them to spend money they shouldn’t have to. The party receiving these costs is not the party themselves but rather the party’s legal representative.

An example of the of costs de bonis propriis is made against attorneys where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the court’s displeasure.

Attorney-own client and client-own attorney costs

These kinds of cost orders, which concern disputes over legal fees or services between an attorney and their client, are extremely unusual. Typically, taxation, which entails an assessment by a taxing master to establish fair and acceptable expenses, is used to resolve them.

An example would be if a client believes that their attorney charged exorbitant fees for services rendered during a divorce case, the court may order taxation to evaluate the reasonableness of the attorney’s bill.

Conclusion

In South African law, a cost order is significant in assessing the financial effects of the legal process. Both plaintiffs and legal professionals must comprehend the various cost orders. Party and party fees are the norm and pay for the reasonable costs associated with the action; attorney and client costs may be granted in unusual cases. Furthermore, wasted costs make legal counsel liable for extra expenditures brought on by their conduct. Last but not least, attorney-own client and client-own attorney costs come into play when lawyers and their clients disagree about legal fees. The ability to traverse the legal system with clarity and caution depends on thoroughly understanding these cost orders.

Contact an Attorney at SchoemanLaw for assistance and all your legal needs.

See also:

• A simple guide to legal costs in South Africa
• Money Money Money – Costs that a court can award
• Civil litigation- Security for costs
• Civil law disputes – Get yourself a great attorney!

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)