Q: I am currently involved in a civil dispute with Ms. A. One of my prayers in the case is costs of the suit. What will the court consider before awarding me costs?
A: Costs are generally the expenses incurred by a party in legal proceedings for either defending or prosecuting the case. Costs include court fees, professional fees, and other expenses that the party bears such as travel expenses. For the court fees, each court is guided by its own provided schedule.
Costs payable are always at the discretion of the court. The general rule is that the party who succeeds in the matter is awarded the costs of the case. However, courts may also direct that each party bear their own costs or a party caters for half the costs of the other party. Courts have previously held that costs are used to compensate the successful party for the trouble taken in prosecuting or defending the case and not to penalize the losing party.
The following are some of the factors that the court take into consideration before awarding costs:
a. The conduct of the parties during litigation; for instance, a delay in prosecuting a matter may lead to a dismissal of the suit with costs to the party who was diligently participating in the suit.
b. The subject of litigation may also be taken into account for instance in public interest litigation, the court may direct that each party bear their own costs as not to discourage public interest litigation.
c. The court may take into account the stage at which the proceedings were terminated for instance when a suit terminated before the opposing party has a chance to respond, the court may not award costs.
d. The manner in which the proceedings were terminated for instance suits terminated by way of consent, parties may provide for who shall cater the costs.
e. The court may consider the relationship between the parties. In certain cases, the court may decline to give an order for costs based on the relationship between the parties i.e. certain family disputes or employment disputes.
f. The court may also look at nature of the case. The court may not award costs in a case if it is frivolous, vexatious or scandalous.
g. The court may also look at the need to promote reconciliation amongst the disputing parties pursuant to Article 159(2)(c) of the Constitution; and
h. The court will also consider whether a demand letter sent. If a party fails to give another party a notice of their intention to sue, the court may disallow costs if the other party rectifies their default based on the claims made in the suit.
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