The County Court Rules 1981

ORDER 38COSTS

Discretion

1.  Subject to the provisions of any Act or rule, the costs of and incidental to all proceedings in a county court shall be in the discretion of the court and the discretion shall be exercised in accordance with the principles which would be applied by the High Court in a like case.

Taxation of costs

2.—(1) Subject to this Order, where by or under these rules or any order or direction of the court costs are to be paid to any person, that person shall be entitled to his taxed costs.

(2) The registrar shall be the taxing officer of the court.

Costs to be regulated by scales

3.—(1) For the regulation of solicitors' charges and disbursements otherwise than for the purposes of rule 18 or 19, there shall be four scales of costs, namely a lower scale and three higher scales as set out in Appendix A.

(2) The scales shall have effect subject to and in accordance with the provisions of this Order and any directions contained in the scales.

(3) In relation to a sum of money only, the scales shall apply as follows:—

(4) Where the sum of money does not exceed £25, no solicitors' charges shall be allowed as between party and party, unless a certificate is granted under rule 4(6).

(5) In addition to the disbursements shown in the scales the appropriate court fees shall be allowable.

(6) In relation to proceedings referred to arbitration under Order 19, rule 2(3), this rule is without prejudice to rule 6 of that Order.

Determination of scale

4.—(1) Subject to this Order, the scale of costs in an action for the recovery of a sum of money only shall be determined—

(a)as regards the costs of the plaintiff, by the amount recovered;

(b)as regards the costs of the defendant, by the amount claimed;

but nothing in this paragraph shall apply to an action under the equity jurisdiction or to an admiralty action or an action in which the title to a hereditament comes in question.

(2) In relation to third party proceedings, paragraph (1) shall have effect as if the defendant issuing the third party notice were the plaintiff and the third party were the defendant.

(3) Where in an action to which paragraph (1) applies there is a counterclaim for a sum of money only, that paragraph shall have effect in relation to the costs exclusively referable to the counterclaim as if the references therein to the amount recovered and the amount claimed were references to the amount recovered on the counterclaim and the amount of the counterclaim respectively.

(4) Where an action to which paragraph (1) applies has been transferred from the High Court to a county court and the amount remaining in dispute at the date on which the registrar receives the documents referred to in section 77 of the Act is less than the amount originally claimed, paragraph (1)(b) shall have effect as if the reference therein to the amount claimed were a reference to the amount remaining in dispute at that date.

(5) Paragraph (1) shall have effect in relation to garnishee proceedings as if the judgment creditor were the plaintiff and the garnishee or, as the case may be, the judgment debtor were the defendant.

(6) In any proceedings in which the judge certifies that a difficult question of law or a question of fact of exceptional complexity is involved, he may award costs on such scale as he thinks fit.

(7) In proceedings to which none of the foregoing paragraphs applies, costs shall be on such scale as the judge when awarding the costs, or the registrar when taxing or assessing them, may determine.

Discretionary allowances

5.  Where in the scales of costs—

(a)an upper and a lower sum of money are specified against an item, or

(b)the amount to be allowed in respect of an item is directed not to exceed a specified sum, or

(c)no amount is specified against an item,

the amount of costs to be allowed in respect of that item shall, subject to rules 9 and 17, be in the discretion of the registrar within the limits of the sums, if any, so specified, and in exercising his discretion the registrar shall have regard to all the circumstances to which a taxing officer of the Supreme Court is required to have regard when determining the amount to be allowed in respect of items of a similar character in the scale of costs prescribed for use in the Supreme Court.

Allowance or disallowance of items by judge

6.  Where the costs of any action or matter are to be taxed, the judge may direct that any item in the scale be allowed or disallowed on taxation.

Value added tax

7.  In addition to the amount of costs allowed to a party on taxation or assessment in respect of the supply of goods or services on which value added tax is chargeable there may be allowed as a disbursement a sum equivalent to value added tax at the appropriate rate on that amount in so far as the tax is not deductible as input tax by that party.

Restrictions on allowance of counsel's fees

8.—(1) No costs shall be allowed on taxation in respect of counsel attending before the judge or registrar on an interlocutory application, or in respect of more counsel than one attending before the judge or registrar on any occasion, unless the judge or registrar, as the case may be, has certified the attendance as proper in the circumstances of the case.

(2) Unless the judge or registrar at the hearing otherwise orders, no fee to counsel with brief shall be allowed in an action for the recovery of a sum of money only where no defence has been delivered and the defendant does not appear at the hearing to resist the claim.

(3) Where a party appearing by counsel is awarded costs but the costs of employing counsel are not allowed, he may be allowed such costs as he might have been allowed if he had appeared by a solicitor and not by counsel.

Allowance of increased sums on taxation

9.—(1) Where in any proceedings in which the costs are to be taxed, the judge is satisfied from the nature of the case or the conduct of the proceedings that the costs which may be allowed on taxation may be inadequate in the circumstances, he may give a certificate under this rule.

(2) Where a certificate is given under this rule, the registrar may, if he thinks fit, allow on taxation such larger sum as he thinks reasonable in respect of all or any of the items in the relevant scale except item 5.

(3) If he decides to exercise his powers under paragraph (2), the registrar, in determining the sum to be allowed in respect of any item, shall have regard to, but shall not be limited by the amount allowable in respect of that item in the next higher scale, if any.

(4) Subject to paragraph (5), an application for a certificate under this rule may be made at the trial or hearing of the action or matter or on notice to be served on the party by whom the costs are payable within 14 days after the making of the order or direction for their payment:

Provided that where an application which could have been made at the trial or hearing is made subsequently, the judge may refuse the application on the ground that it ought to have been made at the hearing.

(5) Where no direction has been given by the judge that this paragraph shall not apply, the registrar may, if satisfied as to the matters mentioned in paragraph (1), exercise on taxation the powers conferred by paragraph (2) as if a certificate had been given under this rule.

Plans in collision actions

10.  In an action arising out of an accident on land due to a collision or apprehended collision, the costs of preparing a plan (other than a sketch plan) of the place where the accident happened shall not be allowed on taxation unless—

(a)before the trial the court authorised the preparation of the plan, or

(b)notwithstanding the absence of an authorisation under paragraph (a), the registrar is satisfied that it was reasonable to prepare the plan for use at the trial.

Expenses of inspection

11.  The expenses of any inspection of a place or thing by the judge or a jury under Order 21, rule 6, shall be paid in the first instance by the party on whose application the inspection is made or ordered or, if made or ordered without an application, by the plaintiff and shall be costs in the proceedings unless the judge otherwise orders.

Allowance of items not in scale

12.—(1) Subject to paragraph (2) and rule 9, where costs are to be taxed in a matter for which no item appears in the relevant scale, reasonable costs may be allowed on taxation, not exceeding those appearing in the scale for a matter of a similar nature.

(2) Where the amount of a solicitor's remuneration in respect of the sale, purchase, lease or mortgage of land or other conveyancing matter or in respect of any other non-contentious business is regulated (in the absence of agreement to the contrary) by general orders for the time being in force under the Solicitors Act 1974, the amount of the costs to be allowed on taxation in respect of the like contentious business shall be the same notwithstanding anything in the scales contained in Appendix A.

Attendance allowance for witness of fact

13.—(1) Subject to paragraph (2), there may be allowed such sum as the judge or registrar thinks reasonable in respect of the attendance at court of any person (including a party to the proceedings) as a witness of fact or as a witness producing a document.

(2) The sum allowed under paragraph (1) shall not exceed £12 for a police officer or £17 for any other person, unless the registrar on taxing or assessing the costs is satisfied that such sum may be inadequate in the circumstances.

Expert witness's fees

14.—(1) Subject to paragraphs (2) and (3), the fees allowable in respect of an expert witness shall be in accordance with the following table:—

(2) Where in any proceedings the judge is satisfied that any of the fees specified in paragraph (1) ought not to be limited as therein mentioned, he may give a certificate under this rule.

(3) Rule 9(2), (4) and (5) shall apply, with the necessary modifications, in relation to a certificate under this rule as they apply in relation to a certificate under rule 9.

Further provisions as to witnesses' allowances

15.—(1) There may be allowed in respect of a witness or party who has attended the trial or hearing of an action or matter, in addition to any sum allowed under rule 13 or 14, any expenses which the witness or party has actually and reasonably incurred in travelling to and from the court or in staying in an hotel.

(2) Where a witness or party attends the court in respect of two or more actions or matters, the sum which might be allowed to him under rule 13 or 14 or paragraph (1) in respect of one action or matter may be apportioned between the several actions or matters.

(3) Allowances may be made in respect of a witness whether he was called or not, if his attendance was necessary.

Interpreters

16.—(1) Subject to paragraph (2), where on the trial or hearing of an action or matter a person attends the court for the purpose of interpreting evidence, there may be allowed in respect of his attendance such sum as might be allowed if he had attended the court as a witness of fact or, if the judge thinks fit, such sum as might be allowed if he had attended the court as an expert witness.

(2) Nothing in paragraph (1) shall apply to an interpreter who is employed and remunerated in accordance with rules made under section 3 of the Welsh Courts Act 1942.

Litigant in person

17.—(1) Where in any proceedings any costs of a litigant in person are ordered to be paid by any other party or in any other way, then, subject to the following paragraphs of this rule, there may be allowed to the litigant in person such costs as would have been allowed if the work and disbursements to which the costs relate had been done or made by a solicitor on his behalf, and the provisions of these rules shall apply with the necessary modifications to the costs of a litigant in person as they apply to solicitors' charges and disbursements.

(2) Nothing in rule 18 or Appendix B shall apply where the plaintiff is a litigant in person.

(3) In relation to the costs of a litigant in person, rule 19(1) shall have effect as if for the words “and the solicitor for the party to whom they are payable so desires” there were substituted the words “and the court does not otherwise order”.

(4) Where the costs of a litigant in person are taxed or assessed without taxation—

(a)he shall not be allowed more than such sum as would be allowed in the High Court in respect of the time reasonably spent by him in doing any work to which the costs relate if in the opinion of the court he has not suffered any pecunary loss in doing the work, and

(b)the amount allowed in respect of any work done by the litigant in person shall not in any case exceed two-thirds of the sum which in the opinion of the court would have been allowed in respect of that work if the litigant had been represented by a solicitor.

(5) Where the costs of a litigant in person are assessed under Appendix C, or where on the taxation of the costs of a litigant in person he is allowed a charge for attending court to conduct his own case, then, notwithstanding anything in rule 13, he shall not be entitled to a witness allowance for himself in addition.

Fixed costs

18.—(1) Appendix B shall effect for the purpose of showing the total amount which, in the several cases to which Appendix B applies, shall be allowed to the solicitor for the plaintiff as fixed costs without taxation, unless the court otherwise orders.

(2) In a case to which Appendix B does not apply no amount shall be entered on the summons for the charges of the solicitor for the plaintiff, but the words “to be taxed” shall be inserted.

Assessed or agreed costs

19.—(1) Where costs are payable on the lower scale, or where costs are payable on one of the higher scales and the solicitor for the party to whom they are payable so desires, the costs shall be assessed without taxation, and on the assessment the court may allow such sums as it thinks reasonable within the limits of the sums appearing in Appendix C opposite the scale applicable to the proceedings, together with such additions, if any, as are authorised by that Appendix.

(2) In relation to costs which fall to be assessed pursuant to paragraph (1), any reference in these rules to taxation shall be treated as a reference to assessment under that paragraph.

(3) Where costs payable on one of the higher scales in respect of an interlocutory application are not included in the general costs of the action or matter, they may be assessed without taxation unless the court otherwise orders, and on the assessment the court may allow such sums as it thinks reasonable within the limits appearing in the scale applicable to the proceedings opposite the relevant items.

(4) Before assessing any costs pursuant to paragraph (1) or (3) the court may require the party to whom the costs are payable to give to the court a note of the sums which he claims to be allowed on the assessment.

(5) Where the sum to be paid by one party to another party in respect of the costs of an action or matter has been agreed between them, the court may direct payment of that sum in lieu of taxed costs.

Taxation of costs as between party and party

20.—(1) Where a party (in this rule called “the applicant”) is entitled to require any costs to be taxed by virtue of any order or direction of the court or by or under any provision of these rules, he shall, within 3 months after the order or direction or, as the case may be, the event entitling him to tax his costs, lodge in the court office his bill of costs, together with all necessary papers and vouchers, and sufficient copies of the bill for service under paragraph (2).

(2) On receipt of the documents mentioned in paragraph (1) the proper officer shall send a copy of the bill to every other party entitled to be heard on the taxation and shall give to the applicant and that party—

(a)not less than 14 days' notice of the day and time appointed for the taxation, or

(b)if the registrar thinks that an appointment to tax may be unnecessary, a notice specifying the amount which the registrar proposes to allow in respect of the bill and requiring either party to inform the proper officer, within 14 days after receipt of the notice, if he wishes to be heard on the taxation.

(3) If in a case in which notice has been given under paragraph (2)(b) either party informs the proper officer within the time limited that he wishes to be heard on the taxation, the proper officer shall fix a day and time for the taxation and give not less than 7 days' notice to the applicant and every other party entitled to be heard.

(4) Where a party entitled to costs fails to procure or fails to proceed with taxation, the registrar may allow the party so entitled a nominal or other sum for costs and may tax and allow the costs of any other party.

(5) Without prejudice to paragraph (4) and rule 25, where a solicitor fails to lodge his bill of costs and requisite documents within the time limited or otherwise delays or impedes taxation, then, unless the registrar otherwise directs, the solicitor shall not be allowed the costs of and incidental to the preparation of the bill and the taxation of the costs.

Taxation as between solicitor and client

21.—(1) In this rule references to a taxation of costs as between solicitor and client include references to—

(a)taxation of a solicitor's bill to his own client, and

(b)taxation on the common fund basis, that is to say, taxation as between solicitor and client where the costs are to be paid out of a common fund in which the client and others are interested.

(2) Rule 4 shall apply to costs as between solicitor and client as if for the reference in paragraph (1)(a) thereof to the amount recovered there were substituted a reference to the amount claimed.

(3) The judge by whom any order is made for the taxation of costs as between solicitor and client may, after affording to the solicitor an opportunity of making any representations that he desires to make,—

(a)determine the scale on which the costs are to be taxed under rule 4 as applied by paragraph (2) of this rule, and

(b)exercise any discretion, whether as to scale or any other matter, give any direction and grant any certificate that the judge could have exercised, given or granted in relation to costs as between party and party.

(4) On taxation of costs as between solicitor and client the registrar shall not be bound to follow any determination of the judge or registrar in relation to the costs as between party and party and accordingly, subject to any determination made under paragraph (3), the registrar may—

(a)exercise any of the powers conferred on the judge by that paragraph;

(b)allow items disallowed as between party and party, and

(c)allow a higher sum in respect of any item than the sum allowed as between party and party, not exceeding the maximum sum prescribed for that item in the scale on which the costs are being taxed.

(5) Subject to paragraph (7), rule 20 (except paragraphs (2)(b) and (3) thereof) shall apply, with the necessary modifications, in relation to costs as between solicitor and client as it applies in relation to costs as between party and party.

(6) In relation to the taxation of costs pursuant to an order under the Solicitors Act 1974, rule 20(1) shall have effect as if for the period of 3 months mentioned in that rule there were substituted a period of 7 days.

(7) The costs of a taxation under the Solicitors Act 1974 shall be dealt with by the registrar in accordance with the provisions of that Act and shall be added to or deducted from the amount certified to be due.

Taxation of costs awarded by tribunal

22.—(1) Rule 20 shall not apply to an application for the taxation of costs, fees or expenses which by or under any Act or statutory instrument other than these rules fall to be taxed by a county court but any such application shall be made by originating application.

(2) The applicant shall lodge with his originating application a bill of the costs, fees or expenses to be taxed and annex a copy of the bill to every copy of the originating application for service.

(3) The application may be made to the registrar and the rules relating to originating applications shall apply as if the taxation were the hearing of the application.

(4) On the taxation the registrar may exercise in relation to the costs any power which he could have exercised if the costs had been awarded in proceedings in the county court.

(5) On the completion of the taxation (or, in the case of a review by the judge, after the review) the proper officer shall send to every party a certificate of the result of the taxation.

(6) Nothing in this rule shall apply to an application under section 20 of the Representation of the People Act 1949 for the taxation of a returning officer's account.

Bases of taxation

23.  The provisions of the R.S.C. relating to the costs which may be allowed—

(a)on a taxation on the party and party basis,

(b)on a taxation on the common fund basis,

(c)on a taxation of a solicitor's bill to his own client, or

(d)on a taxation of the costs which a person who is or has been a party to any proceedings in the capacity of a trustee or personal representative is entitled to be paid out of any fund which he holds in that capacity,

shall apply to the taxation of costs in a county court as they apply to the taxation of costs in the High Court.

Review of taxation

24.—(1) Any party to a taxation who is dissatisfied with the registrar's allowance or disallowance of the whole or part of any item or with the amount allowed by the registrar in respect of any item may, within 14 days after the taxation, request the registrar to reconsider his decision in respect of that item.

(2) A request under paragraph (1) shall be made in writing specifying the item or items objected to and the nature and grounds of the objection, and the party making the request shall serve a copy on each other party to the taxation.

(3) On the making of a request under paragraph (1) the registrar shall reconsider his decision as to the item or items objected to and shall notify each party of his decision on the reconsideration and of his reasons for it.

(4) Any party who is dissatisfied with the registrar's decision on the reconsideration may, within 14 days, after being notified of it, apply to the judge to review the taxation as to the item or items to which it relates.

(5) An application for a review under paragraph (4) shall be made on notice stating the nature and grounds of the applicant's objection to the registrar's decision.

(6) Unless the judge otherwise directs, no further evidence shall be received on the hearing of an application under paragraph (4), and no ground of objection shall be raised which has not been raised in the applicant's notice, but, save as aforesaid, on the hearing of the application the judge may exercise all such powers and discretion as are vested in the registrar in relation to the subject matter of the application.

(7) If the judge sees fit to exercise in relation to the application his power to appoint assessors under section 91 of the Act without any application being made by any party to the proceedings, he shall appoint two assessors, of whom one shall be a registrar, and Order 13, rule 11 (with the omission of so much of paragraphs (4) and (8) thereof as requires the applicant to deposit a sum in respect of the assessor's fee), shall apply as if the assessor had been summoned on the application of a party.

(8) On an application under this rule the judge may make such order as the circumstances require and in particular may order the registrar's certificate of the result of the taxation to be amended or, except where the dispute as to the item under review is as to amount only, order the item to be remitted to the registrar for re-taxation.

Costs arising from misconduct or default

25.  The provisions of the R.S.C. relating to—

(a)costs arising from misconduct or neglect, and

(b)the personal liability of a solicitor for costs,

except such of those provisions as refer to the Official Solicitor and court fees, shall apply in relation to proceedings in a county court as they apply in relation to proceedings in the High Court.