More about legal costs

A client asked, “If I win my case will I get back all the fees I paid you?”

Types of legal costs

There are three types of legal costs:

Party and party costs

These are the costs that a court will award the successful party in a court case. The losing party must pay these costs. They can be agreed or taxed. Taxed costs are those assessed by the Taxing Master of the court you sued out of.  The bill of costs is based on the applicable Magistrates’ or High Court tariffs laid down by law. You would proceed out of the Magistrate’s Court or Regional Court for matters up to R400 000. For claims above that amount, one would sue out of the High Court.

Your attorney will ask you to sign a fee agreement setting out the hourly rate of the attorney and his or her support staff. The agreement will make it clear that the rates are not according to tariff but are on an attorney and own client basis.

Even if you win the case, you will normally only recover the party and party costs and will have to pay your attorney his costs in full. These costs will always be more than the laid down tariff, so you will be out of pocket by the difference.

Attorney and client costs

If a court wants to show its displeasure about a defendant’s conduct during a trial, it may order the defendant to pay attorney and client costs. This is called a punitive costs order and is rare.

Such order obliges the losing party to pay party and party costs plus certain other legal costs, including costs for attendances between you and your attorney.

Of course, if the case is of a contractual nature and the contract has a clause that obliges the losing party to pay attorney and client costs, the court would make such a costs order.

Attorney and “own” client costs

Attorney and “own” client costs are the actual fees and disbursements a client pays his attorney in terms of their fee agreement. Such a costs order is equally rare.

In extreme cases, a court may punish the defendant’s lawyer and order him or her to pay the costs de bonis propriis (out of his or her own pocket).

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