Anyone who needs legal representation in court will be concerned about the potential costs. Often, there’s a lack of clarity surrounding types of legal costs and how they work.
For example, these are common questions:
- What are party and party costs?
- Will I recover my legal costs if I win my case?
- Will the type of court that hears my case affect my legal costs?
We offer a simple guide to the main types of legal costs and how they work in South Africa.
Types of legal costs in South Africa
Legal costs can be roughly divided into three types.
Party and party costs
Party and party costs are legal costs that a court may order the defendant to pay to the plaintiff in a court case.
This doesn’t mean that if you win your case, the “losing side” will simply pay all your legal fees. It’s not quite this straightforward.
Party and party costs are costs incurred in the course of prosecuting or defending a claim in court.
They’re specific to the court case. They don’t include legal costs incurred before a summons or notice of motion has been issued and served.
They also don’t include costs related to attendances between you and your attorney. For instance, they don’t necessarily include charges for the time an attorney spends communicating with you. However, they do include the attorney’s charges for time spent communicating with the other party’s attorney, as part of your court case.
Party and party costs are subject to court tariffs, which are set by law and charged according to fixed scales. Note that the tariffs charged by Magistrates’ Courts differ from those charged by High Courts.
Attorney and client costs
Attorney and client costs include party and party costs, as well as other legal costs – including charges for attendances between you and your attorney.
In some situations, the Courts may award attorney and client costs, or a portion of these costs, to the successful litigant in a case. However, this is seldom done.
When this does occur, it may be because there was a contractual dispute and it was a specific term of the contract that attorney and client costs would be payable in the event of such a dispute. Alternatively, it may occur where a Court believes that a litigant’s conduct in the course of the litigation has been such that a punitive costs order is warranted.
Where attorney and client costs are awarded, the costs are subject to the same court tariffs as party and party costs.
Often, party and party costs are paid towards the full attorney and client costs that are owed. The client is then liable for whatever legal costs remain.
Attorney and “own” client costs
A third category of legal costs in South Africa are so-called attorney and “own” client costs.
These are the actual fees payable by a client to an attorney, in terms of their fee agreement (in which case the hourly rate is not restricted to the statutory Magistrates and High Court tariffs). They’re not generally awarded by the Courts.
Magistrates’ Courts and High Court tariffs
Cases move from a Magistrate’s Court to a High Court once the value of a claim goes over R400 000. In addition, certain types of cases are heard only by a High Court.
Rule 70 of the Rules of Court sets the tariff schedule for South African High Courts. Legal costs awarded by a High Court typically include advocates’ fees.
The Rules of Court also set the tariffs applied by Magistrates’ Courts. These are charged according to one of four scales (A through to D), based on the value of a successful claim. Scale D allows the highest proportion of legal costs to be recovered.
In Magistrates’ Courts, advocate fees aren’t recoverable unless this is specifically ordered.
Taxing of legal costs in South Africa
After you’ve won a case and have been awarded legal costs, a bill of costs is prepared – often by an external service provider known as a cost consultant – and served on the unsuccessful party. It’s also forwarded to an officer of the Courts known as the taxing master.
The taxing master decides which costs are recoverable, and payable by the losing party in your case. This process is known as “taxation”.
The taxing master signs and stamps a certificate known as an “allocator”, which can be used to enforce the payment of legal costs by the losing party.
Personal injury claims with DSC Attorneys
At DSC Attorneys, we work on a no win, no fee basis, meaning that our attorneys can help you get the compensation you deserve, even if you don’t have the funds to pay legal fees upfront.
This is in keeping with our belief that every South African has the right to experienced legal representation and access to justice.
If you may have a personal injury claim, our expert attorneys and medico-legal team can assess your claim, help prepare supporting evidence and represent you in legal proceedings. Contact us for the best possible legal support and representation.