Court costs are often awarded by a court after a trial or application to whichever party was successful. Their purpose is in part to stop parties from bringing claims that have no chance of success and they may be used to hedge poor behaviour by parties during litigation. Another purpose of court costs is that they act as an incentive for parties to make reasonable offers and settle rather than trying their hand at trial or at having their application heard. This is because a party who beats their offer is sometimes awarded “double costs”.
Court costs are not the total out-of-pocket cost that a party incurs to take their case to court. They are lesser amounts which are prescribed in legislation. In civil cases, court costs are called “party and party costs” and are based on a tariff system. Essentially in civil cases, each thing that a party must do on a file is given a specific number of “units” and each “unit” is given a specific monetary value. For example, for attending at an examination for discovery, a party is entitled to claim 4 units if they are the ones examining the other party. Generally speaking, in most cases, the value of each unit is $110. In family law cases, there are less variables in determining how much one might be entitled to for court costs. In that case, the only variable is the difficulty of the case which affects only some of the costs amounts. For example, for an appearance at a contested application a party is entitled to $1000 per half day of attendance no matter what the difficulty.
The general rule is that the successful party is entitled to their court costs pursuant to the tariffs. However, there are other variations of court costs such as “double costs” and “special costs”.
Double costs are sometimes awarded when a party makes an offer to settle that is rejected and then they beat that offer in court. The court will generally order that the other party pay special costs if the offer was one that ought to have reasonably been accepted. The thinking behind this type of cost award is twofold: (1) to encourage parties to make reasonable offers; and (2) to the party receiving the offer to seriously consider whether they ought to accept it. If they do not, they have the possibility of having to pay double the other party’s costs.
Special costs may be as high as full reimbursement of the costs incurred by a party while defending or making a claim. They are very rarely awarded. They are meant to be a deterrent or a “slap on the wrist” for bringing claims which really should not have been brought at all, or for exceptionally poor behavior during the course of the litigation such as non-disclosure in family cases or bringing many frivolous application. It has been noted in many cases that special costs should only be awarded where the party’s conduct is deserving of rebuke.
In addition to costs, where court costs are awarded, the successful party is usually entitled to be reimbursed for any disbursements they incurred while pursuing their claims. This includes such things as filing fees, photocopies, and the cost of reports.
If you are wondering whether you have to pay costs of a divorce or family law application, we address that question here.