Clarifying Confusing Costs Terms

Articles, Procedure + Litigation

In civil litigation, costs orders are awarded at certain stages of the proceedings. The terminology often used by the court concerning costs orders can be confusing to those not regularly involved in litigation.

The most commonly used cost order phrases are:

Costs of the day

This phrase is relatively self-explanatory but it is an order by the court awarding a party the costs of a particular day or event in the proceedings. The order encompasses costs for all work “reasonably connected” with and leading up to the particular day/ event in court.

Costs in the cause

This order means that the costs, usually of an interlocutory application or directions hearing, are awarded to the party awarded final costs in the proceedings.

Costs thrown away

This order awards a party those costs incurred by that party and wasted as a result of the other party’s actions (such as an amendment to a pleading), error, unnecessary application, and / or failure to comply with a timetable.

This order is most commonly given in conjunction with a party being granted leave to amend a pleadings or vacating a trial date. For example, on an application to amend pleadings, the Court will order the applicant to pay the other party’s costs thrown away by reason of the amendment.

Costs reserved

This phrase means that the decision of the court concerning costs is reserved and to be decided at a later date. This order can apply to either interlocutory applications or final hearing.

In the context of interlocutory applications, it means that the decision about costs will be made at a later stage, usually the final hearing.   It can also be made where it is unclear if one party has caused costs of that hearing to be wasted, for example by not complying with a direction of the court.

When this order is made at final hearing, an additional order is usually made giving the parties liberty to apply to the court for a decision to be made as to costs.

No order as to costs

This is a phrase that means that no party is awarded any costs payable by the other.  Ordinarily the effect of the order is that each party must bear its own costs.

The court does not make any order about costs

Confusingly when the court makes no order concerning costs the court is not making “no order as to costs” but instead the costs will be considered part of the costs of the proceedings.

For more information please contact ERA Legal.


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