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122]
Under the RHC, the award of costs is in the court's discretion. However, O 62 r 3(2)
establishes as the usual or dominant approach, the principle that costs should be
ordered to "follow the event", ie, paid by the loser to the winner of the interlocutory
application or the action, as the case may be. The rules also recognize that costs
orders may be used to deter unwarranted steps in the proceedings. The latter approach
is, however, not expressed to be a dominant principle.
Proposal 51 canvassed modification to the dominant rule in three respects :-
(a)
that the "follow the event" principle should no longer be dominant, but merely
one principle to guide the court's discretion;
(b)
that the reasonableness or otherwise of the parties' conduct should be expressly
linked to the "overriding objective" canvassed in Proposal 1 and should be
made the basis for making interlocutory costs orders; and,
(c)
that costs orders should be made in respect of the parties' conduct before as well
as during the proceedings.
The Working Party recommends adoption of the first and second aspects of the
proposal with certain qualifications :-
(a)
the "follow the event" principle should remain the usual approach when dealing
with the costs of an action and any interlocutory costs ordered to be "in the
cause";
(b)
it should also remain an important basis for dealing with interlocutory costs but
should not be accorded dominant status in that context; the use of costs orders to
deter unreasonable interlocutory behaviour should be given equal, if not greater,
prominence; and,
(c)
the rule should require the court to have regard to the underlying objectives
referred to in Recommendation 2, as well as other relevant matters.
The third suggestion, for costs order to be made in respect of pre-commencement
conduct, is not adopted, in line with the Working Party's objective of avoiding front-
loaded costs.
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