ORDER 22.-COSTS.
Division 1.-Preliminary.
1. Interpretation of Order 22. (52/1, 2)
(1) In this Order, unless the contrary intention appears -
bill means bill of costs;
certificate includes allocatur;
contentious business includes all actions, suits and proceedings;
copy includes manuscript copy, copy by a carbon impression, machine-made engrossment, and other facsimile;
taxed costs means costs taxed in accordance with this Order;
trustee includes an executor of a will and an administrator of the estate of a deceased person.
(2) In this Order -
(a) a reference to a fund, being a fund out of which costs are to be paid, or being a fund held by a trustee, extends to any property held for the benefit of any person or class of persons, or held on trust for any purpose; and
(b) a reference to a fund held by a trustee extends to any property to which he is entitled as trustee, whether alone or together with any other person and whether the property is for the time being in the possession of the trustee or not.
2. Transitional.
This Order shall not affect the rights of a solicitor or client in respect of matters pending on the commencement date.
3. Application. (52/3)
This Order applies, subject to its terms, to and in respect of costs payable or to be taxed under any order of the Court or under these Rules and costs to be taxed in the Court under any Act.
4. Powers of the Court generally. (52/4)
(1) The powers and discretions of the Court in relation to costs shall be exercised subject to and in accordance with this Order.
(2) Subject to Sub-rule (1), this Order has effect subject to these Rules and subject to any Act.
5. Time for dealing with costs. (52/5)
(1) The Court may, in any proceedings, exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings.
(2) Where the Court makes an order in any proceedings for the payment of costs, the Court may require that the costs be paid immediately, notwithstanding that proceedings are not concluded.
Division 2.-General.
Subdivision A.-General.
6. Taxed costs and other provisions. (52/6)
(1) Subject to this Order, where, by or under these Rules or any order of the Court, costs are to be paid to any person, that person shall be entitled to his taxed costs.
(2) Where the Court orders that costs be paid to any person, the Court may further order that, as to the whole or any part (specified in the order) of the costs, instead of taxed costs, that person shall be entitled to -
(a) a proportion specified in the order of the taxed costs; or
(b) the taxed costs from or up to a stage of the proceedings specified in the order; or
(c) a gross sum specified in the order instead of the taxed costs; or
(d) a sum in respect of costs to be ascertained in such manner as the Court may direct.
7. Costs in other courts. (52/7)
Where, in proceedings transferred to or removed into the Court, or in proceedings on an appeal to the Court, the Court makes an order as to the costs of proceedings before another court, the Court may -
(a) specify the amount of the costs to be allowed; or
(b) order that the costs be taxed in accordance with this Order; or
(c) make orders for the ascertainment of the costs by taxation or otherwise in that other court.
8. Order for payment. (52/8)
Subject to this Order, a party to proceedings in the Court shall not be entitled to recover any costs of or incidental to the proceedings from any other party to the proceedings except under an order of the Court.
9. Order for taxation: When not required. (52/9)
(1) Where -
(a) an order of the Court directs the payment of costs; or
(b) proceedings are dismissed with costs; or
(c) a motion is refused with costs; or
(d) a party may tax costs under Rule 17 on the discontinuance of proceedings; or
(e) a party may tax costs under Rule 18(1) or (2) on the acceptance of money paid into Court,
the costs may be taxed without any order directing taxation.
(2) Where -
(a) proceedings are dismissed with costs; or
(b) a motion is refused with costs,
and the costs are not paid within four days after the signing of a certificate of taxation of the costs, a party to whom the costs are payable may enter judgement for the taxed costs.
10. Default judgement. (52/10)
(1) Where judgement is entered for costs under Division 3 Order 12 (default judgement) the costs shall not be taxed but shall be in accordance with Table 2 of Schedule 2.
(2) Sub-rule (1) does not apply to a judgement directed to be entered under Order 12 Rule 32.
Subdivision B.-Entitlement.
11. Following the event. (52/11)
If the Court makes any order as to costs, the Court shall, subject to this Order, order that the costs follow the event, except where it appears to the court that some other order should be made to the whole or any part of the costs.
12. Amendment of pleading without leave. (52/12)
Where a party amends a pleading without leave, he shall, unless the Court otherwise orders, pay the costs of and occasioned by the amendment.
13. Interlocutory application. (52/12A)
Subject to this Order, the costs of any application or other step in any proceedings shall, unless the Court otherwise orders, be paid and otherwise dealt with in accordance with the provisions of this Order or the provisions of any order relating to the general costs of the proceedings.
14. Extension of time. (52/13)
Where a party applies for an extension of time, he shall, unless the Court otherwise orders, pay the costs of and occasioned by the application, or an order made on or in consequence of the application.
15. Non-admission of fact. (52/14)
Where a party to any proceedings serves a notice disputing a fact under Order 9 Rule 29(2) (notices to admit facts), and afterwards that fact is proved in the proceedings, he shall, unless the Court otherwise orders, pay the costs of proof.
16. Non-admission of document. (52/15)
Where a party to any proceedings serves a notice disputing the authenticity of a document under Order 9 Rule 31(2) (admission of documents discovered), and afterwards the authenticity of the document is proved in the proceedings, he shall, unless the Court otherwise orders, pay the costs of proof.
17. Discontinuance. (52/16)
(1) Where, under Order 8 Rule 61, a party to any proceedings discontinues the proceedings without leave as to the whole or any part of the relief claimed by him against any other party, the discontinuing party shall, unless the Court otherwise orders, pay the costs of the party against whom the discontinued claim is made, occasioned by the discontinued claim and incurred before service of notice of the discontinuance.
(2) A party whose costs are payable under Sub-rule (1) may tax the costs and, if the taxed costs are not paid within four days after the signing of a certificate of the taxation, may enter judgement for the taxed costs.
18. Payment into Court. (52/17)
(1) Where, under Order 8 Division 6, a plaintiff before the trial or hearing begins -
(a) accepts money brought into Court by a defendant in answer to a cause of action; and
(b) abandons that cause of action as against all other defendants (if any) sued on that cause of action jointly with the defendant bringing the money into Court; and
(c) abandons all his other causes of action (if any),
then, after payment out, he may, unless the Court otherwise orders, tax his costs of the proceedings in respect of his claims for relief against the defendant bringing the money into Court, incurred before service of notice of the deposit of the money accepted and, if the costs are not paid within four days after the signing of a certificate of the taxation enter judgement against that defendant for the taxed costs.
(2) Where a cross-claimant brings money into Court and, in his notice of deposit, states pursuant to Order 8 Rule 73 that he takes into account his cause of action on the cross-claim with a view to its abandonment in case the money is accepted, and the money is accepted before the trial or hearing begins, the cross-claimant may, unless the Court otherwise orders, tax his costs of the cross-claim, incurred before service of notice of the acceptance, and, if the costs are not paid within four days after the signing of a certificate of the taxation, enter judgement against the party accepting the money for the taxed costs.
(3) Where money is paid into Court with or without a denial of liability, and the plaintiff recovers less than the amount so paid in, the plaintiff shall, unless for special cause the Court or a Judge shall otherwise order, be entitled to an order for his costs to the date of the payment in, but be ordered to pay all the costs of the defendant so paying into Court from and after the date of such payment into Court.
19. Offer of contribution. (52/19)
Where a party makes an offer of contribution within the application of Order 8 Rule 49 (order of contribution), the Court may, in exercising its discretion as to costs, take the offer into account.
20. Disobedience to rule, judgement or order. (52/20)
Where any person fails to comply with any provision of these Rules or any judgement or order of the Court, the Court may order him to pay the costs of any-other person occasioned by the failure.
21. Discovery before suit. (52/21)
The Court may, in proceedings in respect of any claim for relief, include in any order for costs the costs of a party to the proceedings of proceedings under Order 3 in respect of that claim for relief including payments of conduct money and payments on account of expenses and loss under that Order.
22. Injunction. (52/21A)
Where the Court grants an interlocutory injunction and afterwards grants a further interlocutory injunction continuing the first injunction with or without modification an order as to the costs of the further injunction shall, unless the Court otherwise orders, include the costs of the first injunction.
Subdivision C.-Party and Party Basis.
23. Application of Subdivision C. (52/22)
This Subdivision applies to costs which are to be paid to a party to any proceedings either by another party to the proceedings or out of a fund.
24. Party and party basis. (52/23)
(1) Costs shall be taxed on a party and party basis unless the costs are to be taxed on the common fund basis under Rule 32 or on the trustee basis under Rule 33.
(2) On a taxation on a party and party basis, there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.
25. Costs where judgement for a small amount. (Vic. 65/121)
(1) Where in an action for tort or contract the plaintiff recovers by judgement or otherwise a sum of less than K10,000.00 (or an order for the possession of goods the value of which is less than K10,000.00 or a sum of money plus an order for the possession of goods the aggregate value of which is less than K10,000.00) he shall, unless the Court or Judge otherwise orders, be entitled only to the costs he would have been entitled to if he had brought his action in the District Court.
(2) For the purposes of Sub-rule (1) a plaintiff shall be treated as recovering the full amount recoverable in respect of his claim without regard to any deduction made in respect of contributory negligence on his part.
26. Second lawyer or overseas counsel.
(1) The fees, costs and expenses of -
(a) a second lawyer; or
(b) overseas counsel,
may be allowed on taxation only if, and to the extent that, they are certified for by the trial Judge.
(2) In this Rule overseas counsel means a barrister or solicitor who is not resident in the country and normally carries on practice as a lawyer outside the country.
27. Refreshers. (52/25)
(1) Where counsel is briefed to appear on a trial or hearing, and the trial or hearing occupies more than six hours, and costs are taxed on a party and party basis, the taxing officer may allow refresher fees in such amount as he thinks fit for every six hours or part of six hours occupied by the trial or hearing after the first six hours and for the remaining duration of the trial or hearing.
(2) The taxing officer may allow refreshers under Sub-rule (1) whether or not witnesses are examined at the trial or hearing.
28. Absence of counsel. (52/26)(A.C.T. 65/83)
(1) Where counsel is briefed to appear on a trial or hearing, and costs are taxed on a party and party basis, counsel's fee on the brief shall not be allowed unless -
(a) he is present at the trial or hearing for a substantial part of the relevant period; or
(b) he gives substantial assistance during the relevant period in the conduct of the proceedings; or
(c) the Court otherwise orders.
(2) In Sub-rule (1), relevant period means the period of the trial or hearing or, if the trial or hearing lasts more than six hours, the first six hours.
(3) Where counsel is briefed to appear on a trial or hearing, a refresher fee shall not be allowed to him for any period unless -
(a) he is present at the trial or hearing for a substantial part of that period; or
(b) he gives substantial assistance during that period in the conduct of the proceedings; or
(c) the Court otherwise orders.
(4) In actions where a barrister and solicitor acts in both capacities, or appears as a barrister instructed by his partner acting as solicitor, neither he nor his partner shall be entitled to make any charge for Preparing any brief or case to counsel to advise or Preparing any instructions to counsel to settle any document, but in lieu of such charges the barrister and solicitor, or partner, as the case may be, shall be entitled to such fees as are allowed by the taxing officer for Preparation for trial.
29. Six-hour period. (52/27)
In reckoning the six hour periods referred to in Rules 27 and 28 the mid-day adjournment and any other adjournment shall not be included unless the Court or the taxing officer otherwise orders.
30. Counsel before Registrar, etc. (52/28)
On a taxation on a party and party basis, or in respect of proceedings before the Registrar in the probate jurisdiction or the matrimonial causes jurisdiction, costs in respect of counsel attending before the Registrar shall not be allowed unless the Registrar certifies the attendance to be proper or the Court otherwise orders.
Subdivision D.-Common Fund and Trustee Bases.
31. Application of Subdivision D. (52/29)
This Subdivision applies to costs which by or under these Rules or any order of the Court are to be paid to a party to any proceedings either by another party to the proceedings or out of a fund.
32. Common fund basis. (52/30)
(1) The Court may order that costs be taxed on the common fund basis.
(2) The common fund basis is a more generous basis than the party and party basis.
(3) On a taxation on the common fund basis -
(a) there shall be allowed a reasonable amount in respect of all costs reasonably incurred; and
(b) the ordinary rules applied on a 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 shall be applied, whether or not the costs are in fact to be so paid.
33. Trustee basis. (52/31)
(1) Where a person who is or has been a party to proceedings in the capacity of trustee is entitled to be paid costs out of any fund which he holds in that capacity, the costs shall be taxed on the trustee basis.
(2) Where the Court makes an order for the payment to a person of costs out of a fund, the Court may order that the costs be taxed on the trustee basis and as if he were a trustee of the fund.
(3) Where the Court makes an order for the payment to a person of costs and he is or was a party to the proceedings in the capacity of trustee, the Court may order that the costs he taxed on the trustee basis and as if the costs were to be paid out of a fund held by him.
(4) On a taxation on the trustee basis, no costs shall be disallowed, except in so far as those costs or any part of their amount should not, in accordance with the duty of the trustee as trustee, have been incurred or paid, and should for that reason be borne by him personally.
Subdivision E.-Solicitor and Client Basis.
34. Application of Subdivision E. (52/32)
Rule 35 applies to any taxation on a solicitor and client basis except where taxation has been excluded under Section 23 of the Lawyers Act.
35. Solicitor and client basis. (52/33)
(1) All costs shall be allowed except as specified in this Rule.
(2) Costs shall not be allowed in so far as they are of an unreasonable amount, unless the amount has been approved by the client.
(3) Costs shall not be allowed in so far as they are unreasonably incurred, unless incurred with the approval of the client.
(4) An approval for the purpose of this Rule may be express or implied.
(5) Notwithstanding Sub-rules (2) and (3) where costs are incurred which in the circumstances of the case are of an unusual nature and such that they would not be allowed on a taxation of costs on a party and party basis under Rule 24 the costs shall not be allowed, unless it is shown -
(a) that the costs were reasonably incurred; or
(b) that before the costs were incurred the solicitor expressly warned the client that the costs might not be allowed on a taxation of costs on a party and party basis.
(6) Where the client is a disabled person, references to the client in Sub-rules (2), (3), and (4) shall be read as references to his next friend or guardian at law.
Subdivision F.-Scale of Costs.
36. Scale of costs. (52/67)
(1) Subject to this Rule, the provisions of Table 1 of Schedule 2 shall apply to the taxation of costs incurred in relation to proceedings commenced in the Court after the commencement date.
(2) On a taxation -
(a) to which Subdivision D. (common fund and trustee bases) and Subdivision E. (solicitor and client basis) apply; and
(b) in any other special case,
costs may, at the discretion of the taxing officer, be allowed -
(c) in relation to items not mentioned in Table 1 of Schedule 2; or
(d) of an amount higher than that prescribed by Table 1 of Schedule 2.
(3) A taxing officer, when exercising his discretion under Sub-rule (2) or in respect of any item marked discretionary in Table 1 of Schedule 2 shall have regard to -
(a) the complexity of the item or of the proceedings in which it arose and the difficulty or novelty of the question involved; and
(b) the skill, specialized knowledge and responsibility required of and the time spent and work done by the solicitor or counsel; and
(c) the number and importance of the documents (however brief) prepared or perused; and
(d) the place and circumstances in which the business involved was transacted; and
(e) the importance of the proceedings to the client; and
(f) where money or property was involved, its amount or value; and
(g) any other fees and allowances payable to the solicitor or counsel in respect of other items in the same proceedings, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.
(4) Costs shall, unless the Court otherwise orders, be allowed in the cases to which Table 2 of Schedule 2 applies in accordance with the provisions of that Table and not in accordance with Table 1 of that Schedule.
37. Probate. (52/68)
(1) Table 5 of Schedule 2 shall apply to proceedings for probate or administration or for resealing of probate or letters of administration where no contention has arisen.
(2) Unless under Table 5 of Schedule 2 the value of the estate or unadministered assets exceeds K4,000.00 a solicitor may not, without the leave of the Court, file his bill for taxation.
(3) If the amount allowed on a taxation to which Sub-rule (2) applies, does not exceed the amount allowable applying Table 5, the solicitor whose bill it is shall not, unless the taxing officer otherwise orders, be allowed the costs to which, apart from this Sub-rule, he would be entitled for drawing and copying the bill and for attending the taxation.
(4) Sub-rule (3) does not affect the operation of Rule 63(b).
(5) Where in contentious proceedings the Court directs the taxation of costs in connection with the obtaining of probate or administration or resealing of probate or letters of administration, the costs prescribed in Table 5 of Schedule 2 may, unless the Court otherwise orders, be allowed separately and in addition to the costs incurred in the contentious proceedings.
(6) A bill for taxation under this Rule shall bear a note of the value of the estate or of the unadministered assets, whichever is appropriate.
(7) A bill, either for taxation or moderation, shall be served on each executor, administrator or trustee before it is filed.
(8) A request for either taxation or moderation shall be endorsed on the bill in the prescribed form and signed by each executor, administrator and trustee.
Division 3.-Taxing Officer.
38. Registrar to be taxing officer. (52/34)
The Registrar shall be the taxing officer of the Court.
39. General powers. (52/37)
The taxing officer may, in the discharge of his functions with respect to the taxation of costs or any other functions under this Order -
(a) dispense with the filing or service of notice of a motion to proceed with taxation; and
(b) require any party represented jointly with any other party in any proceedings before him to be separately represented and
(c) take evidence by the examination of witnesses or otherwise; and
(d) direct the production of any document; and
(e) adjourn any proceedings before him; and
(f) do such other things as the Court may by order direct.
40. Time. (52/38)
The taxing officer may exercise the powers of the Court to extend times under Order 1 Rule 15 and to fix times under Order l Rule 16, in relation to the commencement of a taxation and in relation to the doing of anything in or in connection with the proceedings before him.
41. Absence of party. (52/34)
Where a party entitled to attend any matter before the taxing officer has had due notice of the time appointed for the matter, or where notice to a party has been dispensed with under Rule 39, the taxing officer may proceed in his absence.
42. Costs of proceedings before taxing officer. (52/40)
(1) Costs to be taxed under an order shall, unless the order otherwise provides, include the costs of the taxation.
(2) Costs to be taxed under these Rules shall include the costs of the taxation.
(3) Subject to Sub-rules (1), (2) and (4) and to any order of the Court, a taxing officer may make orders as to the costs of or incidental to any proceedings before him and shall include in his certificate the amount of those costs and a statement of the persons to whom and by whom those costs are to be paid or the fund out of which those costs are to be paid.
(4) Sub-rules (1), (2) and (3) apply subject to any Act and subject to Sub-rule 56(2).
Division 4.-Taxation.
43. Order subject to appeals etc. (52/42)
Where an order is made for the payment of costs, and the costs are to be taxed, the costs may, unless the Court otherwise orders, be taxed, notwithstanding that the order for payment of costs is liable to be set aside, varied or discharged on appeal or otherwise.
44. Costs in account. (52/44)
Where the Court orders that an account be taken and the account consists in part of costs, the Court may, by the same or a later order, direct that those costs be taxed by the taxing officer.
45. Party costs. (52/43)
(1) This Rule applies to costs of or incidental to proceedings in the Court, including -
(a) in the case of an appeal to the Court-the costs of or incidental to the proceedings giving rise to the appeal; and
(b) in the case of proceedings transferred to or removed into the Court-the costs of or incidental to the whole proceedings, both before and after removal,
but does not apply to the taxation of costs for any business done by a solicitor, being a taxation under Section 63 of the Lawyers Act 1986.
(2) Where -
(a) by or under these Rules costs are to be taxed and are to be paid to any party either by another party to the proceedings or out of a fund; or
(b) by or under an order of the Court made in any proceedings costs are to be taxed and are to be paid to any party either by another party to the proceedings or out of a fund; or
(c) in any proceedings the Court makes an order under Rule 44; or
(d) costs are payable under any Act under which costs may be taxed in the Court without an order of or reference to the Court for taxation, except the taxation of costs to which Paragraphs (a), (b) and (c) apply,
an application may be made to the Registrar to have the costs taxed.
(3) This Rule shall not prevent the parties to an action agreeing as to the amount of the costs to be paid by the party or fund liable to pay costs to another party.
46. Application for taxation.
(1) An application under Rule 45(2) shall be in writing and shall be filed.
(2) The bill to be taxed and a copy of it shall be annexed to the application.
(3) Where the Court has made an order directing the taxation of the costs, that order or a copy of it shall also be annexed to the application.
(4) A copy of the application shall be served by the party seeking the taxation on every other interested party.
47. Application for taxation under Section 63 of the Lawyers Act.
(1) This rule applies to proceedings for the taxation of costs under Section 63 of the Lawyers Act 1986.
(2) An application to the Court under Section 63 of the Lawyers Act 1986 shall be made in writing and shall be filed.
(3) The bill to be taxed and a copy of it shall be annexed to the application.
(4) A copy of the application shall be served by the person seeking the taxation on the lawyer who rendered the bill.
(5) The succeeding rules of this Division shall apply to an order that the bill be taxed in the same manner as they apply to an application under Rule 46, with such modifications as are necessary.
48. Notification of time appointed for taxation.
(1) Where an application is made to the Registrar under Rule 45 or an order for a bill to be taxed is made under Section 63 of the Lawyers Act 1986 the Registrar shall fix a time and place for the taxation and shall give notice of the time and place so fixed to the person applying for the taxation or in whose favour the order is made, as the case may be, to the solicitor concerned, and to every other interested party.
(2) The bill shall be taxed and settled by the Registrar at the time and place fixed by the Registrar under Sub-rule (1) subject to such adjournments as the Registrar may consider necessary from time to time.
(3) Where either party to the proceedings does not appear at the time and place fixed by the Registrar under Sub-rule (1), the Court may order the Registrar to proceed with the taxation.
49. Bill. (52/49)
(1) A bill shall contain particulars of -
(a) the work done by the lawyer, his servants and agents; and
(b) the disbursements made; and
(c) the costs claimed for the work done.
(2) In every bill the professional charges shall be entered in a separate column from the disbursements, and every column shall be cast before the bill is left for taxation.
(3) Where it is a clerk who does any work included in a bill and that fact is relevant to the amount of costs allowable for the work, the name and position of the clerk shall be stated in the bill.
(4) Where a liability to make a disbursement has been incurred or a fee to counsel has been incurred and the disbursement or fee would be properly included in a bill if paid -
(a) the disbursement or fee may be included in the bill notwithstanding that it has not been paid; and
(b) the bill shall state that the disbursement or fee has not been paid; and
(c) subject to Sub-rule (5), on taxation, the disbursement or fee shall not be allowed unless Paid before the taxation is completed.
(5) Sub-rule (4)(c) shall not apply where, in proceedings under the Matrimonial Causes Act 1963, on taxation of a bill of a female petitioner or respondent, her lawyer gives a written understanding to the Registrar that all or any fees or disbursements in that bill will be paid by the lawyer out of the first money received by or on behalf of his client in payment of the costs allowed.
(6) The Court or the taxing officer may give leave, on terms, for the amendment of a bill.
(7) A bill must be endorsed with -
(a) the name or firm and business address of the lawyer whose bill it is; and
(b) if the lawyer is the agent of another, with the name or firm and business address of that other lawyer.
50. Service of bill.
A bill need not be served on a lawyer whose bill it is.
51. Attendance of parties. (52/51)
(1) The taxing officer may -
(a) arrange and direct what parties should attend before him on any taxation; and
(b) disallow the costs of attendance of any party whose attendance he considers unnecessary
(2) Notwithstanding Sub-rule (1), any party interested may attend any taxation.
52. Notice of adjournment. (52/52)
Where the taxing officer adjourns a taxation, he may order any party attending before him to serve notice of the adjournment on any absent party.
53. Costs out of fund: Notice to persons interested. (52/53)
(1) Where costs are payable out of a fund, the taxing officer taxing a bill of the costs may -
(a) adjourn the taxation to a specified date; and
(b) order the lawyer whose bill it is or the party to whom the costs are payable to send to any person interested in the fund, free of charge to that person, a copy of the whole or any part of the bill and a letter in accordance with Sub-rule (2).
(2) A letter ordered to be sent under Sub-rule (1) shall state -
(a) that the costs are payable out of the fund (identifying it) and that the bill is being taxed; and
(b) the name and address of the taxing officer; and
(c) the adjourned date for further proceedings with the taxation; and
(d) such other information as the taxing officer may direct.
54. Reference to Court. (52/54)
The taxing officer may, on his own motion, refer to the Court for direction, any question arising in a taxation.
55. Default of party entitled. (52/55)
(1) Where a party is entitled to apply under this Division to have costs taxed but does not, within a reasonable time after service on him of a written request to do so by a party liable for the costs, file and serve an application, the taxing officer may fix a time within which the party entitled must file and serve an application to have costs taxed.
(2) Where a party entitled to costs fails to make application in accordance with Rule 45 the taxing officer may fix a time within which the party entitled must file or serve his bill.
(3) Where a party entitled to costs fails to file and serve an application to have the costs taxed or fails to file or serve his bill within a time fixed under this Rule, the taxing officer may certify the failure and may disallow the costs of the party entitled or allow them at such amount as he thinks fit.
(4) Where a party entitled to costs defaults by failing to proceed with taxation, the taxing officer may, for the purpose of preventing any other party being adversely affected by the default, certify the default and may -
(a) disallow the costs of the defaulting party or allow them at such amount as he thinks fit; and
(b) certify the costs of the other parties.
56. Disallowance of fees for taxation. (52/56)
(1) Where a solicitor -
(a) fails to file his bill for taxation within the time fixed by or under this Order; or
(b) otherwise delays or impedes the taxation,
the solicitor shall not, unless the taxing officer otherwise orders, be allowed the fees to which, apart from this Sub-rule, he would be entitled for preparing his bill of costs and for attending the taxation.
(2) If, on the taxation of any costs, one-sixth or more of the amount of the bill for those costs is taxed off, the solicitor whose bill it is shall not be allowed the fees to which, apart from this Sub-rule, he would be entitled for preparing the bill and for attending the taxation.
57. Liability of solicitor. (52/57)
Where, in any proceedings before the taxing officer, a solicitor for any party -
(a) is guilty of neglect or delay; or
(b) puts any other party to unnecessary expense, the taxing officer may order the solicitor to pay costs to any party.
58. Cross costs. (52/58)
(1) Where a party entitled to be paid costs is also liable to pay costs, the taxing officer may -
(a) tax the costs which that party is liable to pay and set off the amount allowed against the amount he is entitled to be paid and certify the amount of the balance and the parties by and to whom the balance is payable; or
(b) withhold his certificate for the costs which that party is entitled to be paid until that party has paid or tendered the amount he is liable to pay.
(2) Costs in any proceedings may be set off under Sub-rule (1)(a) notwithstanding that a solicitor for a party to the proceedings has a lien for costs in the proceedings.
59. Certificate. (52/59)
(1) The taxing officer may make separate and interim certificates.
(2) Where, in the course of the taxation of a solicitor's bill to his own client, it appears to the taxing officer that in any event the solicitor will be liable in connection with the bill to pay money to the client, he may make an interim certificate specifying an amount which in his opinion is payable by the solicitor to the client.
(3) The taxing officer shall, after the conclusion of the taxation of any bill, make a final certificate of his disallowance of the costs in the bill or of the amount at which he allows the costs.
(4) Where the taxing officer decides to allow or disallow, wholly or in part, any item in a bill or to allow some amount in respect of any item, he shall not, except with the consent of the parties interested, make a certificate dealing finally with that item, until the expiry of 14 days after the date of the decision.
(5) A certificate made by the taxing officer in any proceedings shall, unless made on a filed bill, be filed in the proceedings.
(6) On the making of a certificate under Sub-rule (2), the Court may order the amount specified in the certificate to be paid to the client or into Court.
(7) The taxing officer may make a separate or interim certificate in respect of any item in a bill notwithstanding an application for review under Rule 60 to his decision on any other item in the hill.
60. Application for review of taxation. (U.K. 62/33)
(1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by the taxing officer, or with the amount allowed by the taxing officer in respect of any item, may apply on motion to a Judge to review the decision in respect of that item.
(2) An application for review of the taxing officer's decision shall be made within 14 days after the date of the decision objected to or within such further time as the Court may allow.
(3) Every applicant for review under this Rule must at the time of making his application deliver to the taxing officer objections in writing specifying the list of items to which the applicant objects and must state concisely the nature and grounds of each objection.
(4) An applicant for review under this Rule shall serve a copy of the objections on each other party (if any) who attended the taxation of those items and any other person whom the taxing officer directs shall be served.
61. Review. (U.K. 62/35)
(1) On the review, unless the Court for good reason otherwise directs
(a) no further evidence shall be received; and
(b) a party shall not raise any ground of objection not stated in the statement of objections delivered to the taxing officer.
(2) Subject to Sub-rule (1), on the review the Court may exercise all such powers and discretions as are vested in the taxing officer in relation to the subject matter of the application.
62. Judgement. (52/63)
Where the amount of any costs has been certified under this Division the Court may, on motion by a party, direct the entry of such judgement for the costs as the nature of the case requires.
Division 5.-Miscellaneous.
63. Costs of solicitor appointed as guardian at law. (52/64)
Where the Court appoints a solicitor to be guardian at law or next friend of a disabled person who is a party to any proceedings, the Court may -
(a) order that the costs to be incurred in performance of the duties of guardian at law or next friend be paid-
(i) by the parties to the proceedings or any of them; or
(ii) out of any fund in Court in which the disabled person is interested; and
(b) make orders for the repayment or allowance of the costs as the nature of the case may require.
64. Trustee or mortgagee. (52/65)
(1) Where a person is or has been a party to any proceedings in the capacity of trustee or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of the proceedings out of the fund held by the trustee or out of the mortgaged property, as the case may be, in so far as the costs are not paid by any other person.
(2) The Court may otherwise order under Sub-rule (1) only where -
(a) the trustee or mortgagee has acted unreasonably; or
(b) in the case of a trustee, he has in substance acted for his own benefit rather than for the benefit of the fund.
65. Personal liability of solicitor for costs. (52/66)
(1) Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a solicitor is responsible (whether personally or through a servant or agent), the Court may, after giving the solicitor a reasonable opportunity to be heard -
(a) disallow the costs as between him and his client; and
(b) direct the solicitor to repay to his client costs which the client has been ordered to pay to any other party; and
(c) direct the solicitor to indemnify any party other than his client against costs payable by the party indemnified.
(2) Without limiting the generality of Sub-rule (1) a solicitor is responsible for default for the purposes of that Sub-rule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the solicitor -
(a) to attend in person or by a proper representative; or
(b) to file any document which ought to have been filed; or
(c) to deliver any document which ought to have been delivered for the use of the Court; or
(d) to be prepared with any proper evidence or account; or
(e) otherwise to proceed.
(3) The Court may, before making an order under Sub-rule (1), refer the matter to the taxing officer for enquiry and report.
(4) The Court may order that notice of any proceedings or order against a solicitor under this Rule shall be given to his client in such manner as may be specified in the order under this sub-rule.