What a successful party recovers from the loser in the Supreme Court is not what its lawyer charged. It is what the Registrar allows on taxation against a published scale. The scale is the Fourth Schedule, and it has been the same since the 2012 Rules came in.
The rule that applies it
Except as otherwise ordered in proceedings commenced on and after the date these Rules came into operation, lawyers are, subject to these Rules, entitled to charge and be allowed the fees set forth in the Fourth Schedule (except for proceedings under Order 5 Division 2, sub-division 14 where the Third Schedule applies), and higher fees shall not be allowed.
The Rule speaks of what lawyers are entitled to charge as well as what is allowed on taxation, but the Rules regulate party and party costs, and the taxing officer applies the Schedule to a bill between the parties. Order 12 Rule 26 provides that costs are on the party and party basis unless otherwise ordered. Election petition reviews use the Third Schedule instead; see the election petition review scale.
The main items
| Item | Matter | Charge |
|---|---|---|
| 1 | Preparing a notice or entry of appearance | K75 |
| 2 | Preparing an application or notice of motion | K250 |
| 3 | Preparing an affidavit, by complexity | K250 to K850 |
| 4 | Preparing appeal books, including collating and oversight | Lawyer K150 an hour; clerk K25 an hour |
| 5 | Preparing any other document, including an application for leave, notice of appeal or reference | K350 to K1,000 |
| 6 | Perusal of documents, by complexity and seniority | K150 to K450 an hour |
| 7 to 10 | Short and ordinary letters, prepared and perused | K50 and K75; K25 and K50 |
| 11 | Printing or photocopying | K4 a page |
| 12 | Telephone attendance | K50 up to ten minutes; K75 over |
| 13 and 14 | Attendances by a clerk; attendances requiring a lawyer | K50; K150 to K450 an hour |
| 15 | Appearance in Court, excluding waiting time | K150 to K450 an hour, not exceeding K3,000 a day |
| 16 | Waiting time at Court | K150 an hour, not exceeding K850 a day |
| 17 | Appearance to receive judgment | K150 to K450 |
| 18 | Out-of-town lawyer | Return airfares, reasonable hotel and local transport |
| 19 | Counsel’s fees | As a disbursement where proper, fair and reasonable; overseas counsel only under Rule 29(2) |
| 20 | General care and conduct, where warranted | K150 to K450 an hour in addition |
| 21 and 22 | Professional witnesses; other witnesses | Up to K350 an hour and K1,500 a day; wages lost up to K50 an hour and K400 a day |
| 23 | Court fees | As properly incurred and paid |
| 24 | Preparing the bill and attending taxation | Lawyer K150 to K350 an hour; clerk K25 an hour |
The care and conduct allowance
Item 20 is the discretionary element. Where the case or circumstances warrant it, an allowance may be claimed in addition to every other item for general care and conduct, having regard to the complexity and novelty of the questions, the importance of the matter and the amount involved, the skill and responsibility required, the number and importance of documents, the time taken, and research on questions of law and fact. It is claimed as a separate item and justified in the bill; it is not a percentage uplift.
Counsel and overseas counsel
A fee to counsel instructed by another lawyer is allowed as the taxing officer thinks just. The fees, costs and expenses of an overseas counsel are recoverable only where certified by the Court, and item 19 says so expressly. Rule 3 allows a party represented by a State lawyer or an in-house lawyer a fee commensurate with a private lawyer’s although no fee was paid.
Reductions and disallowances
Rule 30 lets the Court or the taxing officer disallow costs improperly, unreasonably or negligently incurred, and requires the taxing officer to look into that question even if it was not raised. Rule 30(3) reduces costs by one-third where a party recovers less than the District Court’s civil limit on a money claim, unless otherwise ordered. Rule 31 disallows the costs of an unnecessary appearance. Rule 48 of Order 5, and the equivalent in Order 12, penalises a lawyer whose bill is taxed down by one-sixth or more by disallowing the costs of preparing the bill and attending taxation.
The bill of costs
Part 2 of the Fourth Schedule prescribes the form of bill: headed with the file number and parties, stating the basis of taxation and the rule or order under which it is taxed, and itemised under headings that track the Schedule, preparation of documents, perusal, preparation for hearing, court appearances, correspondence, attendances, out-of-town and overseas counsel expenses, additional allowance, witnesses, court fees and taxation, with columns for disbursements, charges and amounts taxed off, and a certificate by the lawyer that the bill is correct with receipts for significant disbursements. See the bill of costs and how costs are taxed.
The gap between scale and fee
A lawyer charging K900 an hour recovers at most K450 on the scale, and an appearance capped at K3,000 a day may represent a fraction of counsel’s actual fee. The difference is borne by the client. Indemnity costs, where ordered, are still taxed but with a more generous discretion; see indemnity costs. The overall picture of what an appeal costs is in what a Supreme Court appeal costs.
Sources
- Supreme Court Rules 2012 — O 12 rr 3, 12, 26, 29–31; Fourth Schedule Parts 1 and 2; Third Schedule
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.