 |  |
|
 |
 |
 |
 |
|  | |  | |
24.1
The present approach
In the present context, we are concerned with two main principles which inform the
court's discretion as to when one party should be ordered to pay another party's costs.
The first is that the winning party should be able to shift the burden of his legal costs
(subject to taxation) to the other party. This "cost-shifting" principle or the principle
that "costs normally follow the event" is applied both in relation to a party who
ultimately wins the action (in which case he gets the costs of the action and of any
interlocutory applications where costs were ordered to be "in the cause") as well as to
a party who succeeds in a particular interlocutory application (the "event" being such
success and the costs awarded being the costs of that application).
This approach is made the dominant, usually applicable, principle by O 62 r 3(2)
which provides :-
"If the Court in the exercise of its discretion sees fit to make any order as to the costs of or
incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow
the event, except when it appears to the Court that in the circumstances of the case some
other order should be made as to the whole or any part of the costs."
Order 62 r 3 recognizes that in certain circumstances the "follow the event" principle
should not apply. It lists particular exceptions, for instance, the costs of amendments
without leave (where the amending party pays), the costs of time extensions (where
the party seeking the extension pays), the costs of proving facts or documents where a
notice to admit those facts or documents has not led to an admission, the costs where a
defendant has discontinued his counterclaim without leave, and so forth.
|
 |
|