What is it?
Generally,
the party who is successful in a High/Subordinate Court proceeding may
ask the court for an order that the unsuccessful party pay their costs.
These costs are commonly referred to as “party/party” costs. The “costs”
are to partially indemnify a person for the legal costs incurred by
them or the time spent prosecuting or defending a court proceeding. The
costs are then, based on the tariff set out in the Advocates
(Remuneration) (Amendment) Order, (specific Year)
All court related
civil matters are said to be litigation matters and the law sets the
minimum fees. The mechanism of charging fees is different in the High
Court with subordinate courts having a separate scale of fees. In civil
litigation, there are two distinct methods of determining fees and these
are said to be ‘party and party’ fees and ‘advocate and client’ fees.
Before the hearing
The
party who was awarded costs will prepare their bill following
regulations of each set of rules under the advocates remuneration order
of a specified year. The Tariff sets out items involved in
prosecuting/defending a proceeding and assigns a number of units or sets
a prescribed amount of costs for each of these events. In civil
matters, some of the items show a range of units; others are fixed
depending on how long the event took. If there is a range, the number of
units awarded is based on the work done within the description of the
items covered under a particular tariff item. The bill will also include
a list of disbursements. A copy of the bill is served on all affected
parties. If a party does not agree with the amount of the bill, a
hearing to assess the costs must be arranged before a registrar. A date
for the hearing is obtained from Supreme Court Scheduling in the court
registry where the proceeding originated or the registry where all
parties have agreed the costs assessment should take place.
At the hearing
The
onus is on the party who was awarded costs to prove their bill. This
means they must produce proof of work done and disbursements incurred.
If proof is not given, the items may be disallowed. This is often done
by producing at the hearing copies of the pleadings, any interim orders
made, notices to admit and the like. The party presenting the bill of
costs for assessment may make an affidavit setting out the work done, as
well as an affidavit of disbursements. Sometimes, a party testifies in
court, at the assessment hearing itself. The opposing party must be
prepared to tell the registrar why they object to disputed items and
disbursements on the bill. The assessment is conducted like any other
court hearing. The person presenting the bill of costs goes first, the
opposing party then makes their objections and then the party awarded
costs has a right of reply. Sometimes the registrar will rule on the
tariff items before turning to the disbursements but usually, the
registrar will deal with all matters and provide their decision at the
conclusion of the hearing. If the opposing party does not appear, proof
of service of the appointment (i.e. an affidavit of service) is
required.
Mode of charging
Party and party’ costs are based on the
principle that the unsuccessful party in any case must, unless the
court otherwise orders for good reason, pay the successful party. After a
matter is finalized, the successful party and the losing party may
agree on the costs to be paid. Failure to this, a Resident Magistrate of
any designation who has been gazetted as a Registrar or Deputy
Registrar of the High Court can adjudicate upon the quantum of fees
between opposing parties or between an advocate and client.
The
Magistrate (in his capacity as Taxing Officer), decides on all matters
of fees. The taxing officer’s decision is appealable to the High Court
and the Court of Appeal. And what are ‘advocate and client fees? In a
concluded matter, the minimum advocate/client fees is that assessed by
the taxing officer increased by one half. An unsuccessful litigant pays
the opposing side and his own lawyers’ costs and in the same breath the
winning side’s lawyer gets fees from the losing party and his own
client. Every single aspect of costing is provided for by law, from
writing a letter, perusing it to appearances in court. But the
‘instruction fees’ are based on the value of the subject matter, and
whether the matter is defended or undefended.
For step by step guidance on preparation of a Bill of costs in Kenya and samples please consult through the mail.
No comments:
Post a Comment