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.
4 comments:
How does a client challenge an entire bill of costs filed by an advocate
who was never instructed by the client to represent them.
Please guide me through the procedure
To begin with, it is weird for an Advocate to Act without Instructions. All in all, most of the cases where the client challenges the bill of costs is where the bill of costs does not provide sufficient information for what the client is being charged for. Where detail is given, there would need to be a specific challenge to particular items to avoid summary judgment. If so, the client could have those items assessed, but not the whole bill. If no detail is provided, meaning that all that the client can do is to challenge the reasonableness of the total sum claimed, then there should be an assessment of the whole bill, albeit not one pursuant to Advocate's Act.
Generally, If you think you’ve been charged too much by your Advocate, you can challenge their bill. You should either challenge it directly with your solicitor, by asking them to commence detailed assessment proceedings, or failing that, by asking the Senior Courts Costs Office to make a detailed assessment of the bill. If they find it is unreasonable they will reduce it. However, we would strongly advise you to try to come to some kind of agreement with your Advocate, before requesting detailed assessment of the bill, as the process is not only time sensitive, but comes with additional expense in the form of court fees and possible extra costs if you lose.
In simple terms, let's say a client is successful in a matter and the court awards them costs on top of damages. Does the client pay their advocate fees from both the costs and the damages or from the damages alone?
Think about the question practically.
1. I instruct an advocate, at this point I pay them 20 shillings
2. We agree that I will pay for all the necessary fees to prosecute the case.
3. We also agree that I will pay him 20% of the damages that may be awarded.
4. We mention nothing about costs.
5. So now if I get the damages plus the costs what does the law require the division of that money be?
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