COSTS

1. Introduction

1.1 Costs are the expenses of litigation or prosecution allowed in favour

of one party against the other by the court.1 Costs include legal fees,
charges, and disbursements2 and are awarded to compensate the
successful party for the expenses to which he has been put and he
cannot therefore recover a sum in excess of his liability to his own
advocates. The costs must be costs of the proceedings in which the
parties are involved.3

1.2 The Supreme Court in the case of Kuta Chambers (Sued as a firm)
v Concillia Sibulo (Suing as Administratrix of the estate of the late
Francis Sibulo) Selected Judgment No. 36 of 2015 held as follows:

“A legal practitioner engaged by a party to represent

that party is entitled to charge for services provided and
for expenses that he incurs for such representation.
The charges for legal services are called legal fees
while the case costs, that is to say the expenses that
the legal practitioner incurs on behalf of the instructing
party (which include court filing fees, witnesses' travel
expenses, photocopy charges, courier payments etc.) are
called disbursements. The legal fees and disbursements
together are what we understand as costs. Costs therefore
1
Bryan A. Garner, Black’s Law Dictionary, 8th ed. West, a Thomson Business (2004) p. 372
2
The Legal Practitioner’s Act, Chapter 30 of the Laws of Zambia
3
Atkins Court Forms, Vol 13, 2nd Ed. (1992) issue, Para 8, Page 99
1
 are not confined to legal fees alone. This is consistent
with the definition of the term costs given in section 2
of the Legal Practitioners, Act Chapter 30 of the Laws of
Zambia.”

1.3 The Supreme Court in the Kuta Chambers case further held that:

“The party and party costs, that is to say all the costs
necessary to enable the adverse party to conduct or
defend the litigation, excluding luxuries, will generally be
awarded to the successful party . The object of these
costs is to indemnify the successful party against the
expenses to which he has been put by the
unsuccessful party. We must also stress that the effect
of this is to give the successful litigant a full indemnity
for all costs reasonably incurred by him in relation to
the action, except advocate and client costs, where
these are applicable.”4 (Emphasis ours)

1.4 It therefore follows that costs are comprised of expenses incurred

by a party in the prosecution of his case and where he is
represented by advocates. Costs are comprised of legal fees and
any costs of the proceedings incurred by the advocates on his
behalf.

4
Ibid…page 19
2
 1.5 The cost of every suit or matter and of each particular proceeding
shall be in the discretion of the Court or a Judge; and the Court or a
Judge shall have full power to award and apportion costs, in any
manner it or he may deem just, and, in the absence of any express
direction by the Court or a Judge, costs shall abide the event of the
suit or proceeding.5

1.6 However, the Court shall not order the successful party in a suit to
pay to the unsuccessful party the costs of the whole suit; although
the Court may order the successful party, notwithstanding his
success in the suit, to pay the costs of any particular proceeding
therein.6

1.7 It is thus now settled that costs for any legal proceedings shall be
awarded in the discretion of the court. This position has been
repeatedly asserted by the court in various cases.
Among the considerations to be had in exercising the discretion to
award costs is one that was articulated in Y.B. and F Transport v
Supersonic motors Limited (2000) ZR 22 in which the Supreme
Court held that:

“The general principle is that costs should follow the event,

in other words, a successful party should normally not be
deprived of his costs, unless the successful party did
something wrong in the action or in the conduct of it.”

5
Order 40 rule 6 of the High Court Rules, Chapter 27 of the Laws of Zambia
6
Ibid
3
 1.8 The winner, in other words, is relieved from the burden of incurring
expenses and recovers his costs from the loser.

Taxation of bill of costs

1.9 Where the parties are unable to agree the costs payable, the party
who has been ordered to pay costs can require the party who is
claiming the costs to have the bill taxed by the taxing master. In this
respect, the High Court Rules provide:7

“All questions relating to the amount of costs shall, unless

summarily determined by the court be referred to the
Taxing Master and, after notice of taxation, to the parties,
be ascertained by him.”

1.10 A party whose costs are to be taxed ought to prepare a bill of costs
for taxation. A bill of costs, which is subject to taxation, is an
itemized account reflecting all the charges, including fees and
disbursements made by a legal practitioner. The fees charged in a
party to party bill of costs, must be drawn in accordance with the
tariff of fees and charges set out in the Legal Practitioners (Costs)
Order. Briefly, a bill of costs should indicate-

(a) a date on which the work was done;

(b) the items in respect of which costs are charged, which items
should be numbered and must be listed in a chronological order;

7
High Court Rules XL, r2.
4
 (c) the amount of folios or pages involved and the period of time
spent in relation to each item;
(d) a precise description of each item; and
(e) the fees charged for each item, charged in accordance with the
applicable tariff.

Appeals on taxation

1.11 A party who is dissatisfied with the decision of the Taxing Master
may apply to the court for review.

In the case of the High Court, Court of Appeal, and Constitutional

Court, it is provided:8

“Any party to any taxation proceedings who is dissatisfied

with the allowance or disallowance in whole or in part of
an item by a Taxing Officer, or with the amount allowed by
a Taxing officer in respect of any item, may apply to the
Taxing Officer to review his decision in respect of that
item.”

1.12 It further provides that:9

“Any party who is dissatisfied with the decision of Taxing

Master to allow or to disallow any item in whole or in part
on review under the two last foregoing or with the amount
allowed in respect of any item by a Taxing Master on any
8
High Court Rules Order XL, r 3(1), Court of Appeal Rules Order XII, r 4(1) and Constitutional Court Rules Order
XIII, r 4(1).
9
High Court Rules Order XL, r 5(1), Court of Appeal Rules Order XII, r 5 and Constitutional Court Rules Order
XIII, r 5.
5
 such review, may apply to a judge for an order to review
the taxation as to the item or part of an item.”

1.13 Order 40 of the High Court Rules therefore gives a party who is
aggrieved by the decision of the Taxing master two options: either
to apply for review before the Taxing master,10 or if still dissatisfied
with the review by the Taxing master, apply for review to a Judge in
Chambers.

Time within which to file bill of costs before Taxing master – party to party

1.14 Where a party is entitled to recover taxed costs or to require any

costs to be taxed by a Taxing officer by virtue of a judgment,
direction or order given or made in proceedings in the Court or
arbitral tribunal, he must begin proceedings for the taxation of those
costs within three(3) months after the judgment, direction, order,
award or other determination was entered, signed or otherwise. 11 A
party who begins proceedings for taxation must, at the same time,
lodge in the appropriate office a bill of costs.12

1.15 It therefore follows that the bill of costs must be filed three(3)
months after the order granting costs has been made and at the
same time as the taxation proceedings are commenced.

What to include in the Bill of Costs

10
Under the High Court Rules Order XL, r 3(10.
11
Order 62 Rule 29 (1) of the Rules of the Supreme Court of England, 1965
12
Order 62 Rule 29 (7) (c) of the Rules of the Supreme Court of England, 1965
6
 1.16 The bill of costs must contain the following:

(i) Professional charges and the disbursement set out in

separate columns;
(ii) It must be endorsed with the name, or firm and business
address of the solicitor whose bill it is; and
(iii) It must be signed by that solicitor or, if the costs are due to a
firm, by a partner of that firm.13

Documents to file with the bill of costs

1.17 A party who begins proceedings for taxation must, at the same time,
lodge in the appropriate office, unless the taxing officer otherwise
orders, the papers and vouchers specified below in the order
mentioned –

(i) a bundle comprising all civil legal aid certificates and

amendments thereto, notices of discharge or revocation
thereof and specific legal aid authorities;
(ii) unless the relevant information is included in the judgment or
order or the parties have agreed the times of the hearings, a
certificate of times or a copy of the associate's certificate;
(iii) a bundle comprising fee notes of counsel and accounts for
other disbursements;
(iv) one complete set of pleadings arranged in chronological
order, with any interlocutory summonses and lists of
documents annexed to it;

13
Ibid

7
 (v) cases to counsel to advise with his advice and opinions, and
instructions to counsel to settle documents and briefs to
counsel with enclosures, arranged in chronological order;
(vi) reports and opinions of medical and other experts arranged
in chronological order;
(vii) the solicitor's correspondence and attendance notes; and
(viii) any other relevant papers duly bundled and labelled.14

2. SOLICITOR – CLIENT FEES

2.1 A practitioner and his client may; either before or after or in the
course of the transaction of any non contentious business by the
practitioner, make an agreement as to the remuneration of the
Practitioner in respect thereof. Agreement with respect to
remuneration for non contentious business.15

2.2 The agreement may provide for the remuneration of the

practitioner by a gross sum, or by commission or percentage, or
by salary, or otherwise, and it may be made on the terms that the
amount of the remuneration therein stipulated for either shall or
shall not include all or any disbursement made by the practitioner
in respect of searches, plans, travelling, stamps, fees or other
matters.16

14
Order 62 Rule 29 (7) (d) of the Rules of the Supreme Court of England, 1965
15
Section 74(1) Legal Practitioners Act Cap 30.
16
Section 74(2) Legal Practitioners Act Cap 30.
8
 2.3 The agreement shall be in writing and signed by the person to be
bound thereby or his agent in that behalf.17

2.4 A practitioner may make an agreement in writing with his client

as to his remuneration in respect of any contentious business
done or to be done by him, providing that he shall be
remunerated either by a gross sum, or by salary, or otherwise.
Power to make agreements as to remuneration for contentious
business.18

2.5 A Legal practitioner is obliged by the Legal Practitioners’ Act, to

charge in accordance with the scale of fees set out in the Legal
Practitioners’ (Conveyancing and Non-Contention Matters)
(Costs) Order 2001 (Statutory instrument No 8 of 2001), in the
case of non-contentious matters, and the Legal Practitioners’
(Costs) Order (Statutory Instrument No. 9 of 2001), in the case of
all other matters. Both Statutory Instruments expressly oblige a
legal practitioner to agree with the client on the scale to be
applied.

2.6 A Legal Practitioner, therefore, has a duty on taking instructions

to inform his/her client of his charges or fees and agree on the
basis of such charges. This requirement is echoed in Rule 17(1)
of the Legal Practitioners’ Practice Rules (Statutory Instrument
No. 15 of 2002. In terms of Rule 41 of those Rules, non-
17
Section 74(3) Legal Practitioners Act Cap 30.
18
Section 76, Legal Practitioners Act Cap 30.
9
 compliance, failure, evasion or disregard of the Rules without
reasonable cause, constitutes professional misconduct , or
conduct unbefitting a practitioner in terms of section 53(ii) of the
Legal Practitioners’ Act, Chapter 30 of the Laws of Zambia.

Dispute with respect to fees charged by a practitioner to his own client

2.7 No practitioner shall commence any suit for the recovery of any
fees (charges and disbursements) for any business done by him
until the expiration of one month after he shall have delivered to
the party to be charged therewith or sent by registered letter to or
left for him at his office, place of business, dwelling-house or last
known place of abode a bill of such fees, such bill either being
signed by such practitioner (or, in the case of a partnership, by any
of the partners, either in his own name or in the name of the
partnership) or being enclosed in or accompanied by a letter
signed in like manner referring to such bill.19

2.8 Upon the party to be charged applying to the Court or a Judge

within such month, it shall be lawful for the Court or a Judge to
refer the bill and the demand of the practitioner to be taxed and
settled by the Taxing master of the Court, and the Court or a
Judge shall restrain such practitioner from commencing any suit
touching such demand pending such reference.20

19
Order 50 rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia
20
Order 50 rule 3 of the High Court Rules, Chapter 27 of the Laws of Zambia
10
 2.9 Upon the completion of the taxation of any bill referred as
aforesaid, the taxing master shall submit to the Court or a Judge
the result of his taxation, including costs, and the amount so
submitted shall be final and conclusive as to the amount of the bill
and costs provided that the Court or a Judge may, in its or his
discretion, review any such taxation. And it shall be lawful for the
Court or a Judge to order that judgment be entered for the amount
submitted, unless the retainer is disputed, or to make such other
order therein as the Court or a Judge may deem proper.21

Advocates’ disputed bill to Taxing officer

2.10 Any party to taxation proceedings who is dissatisfied with the
allowance or disallowance in whole or in part of any item by a
Taxing officer, or with the amount allowed by a Taxing officer in
respect of any item, may apply to the Taxing officer to review his
decision in respect of that item.22

2.11 An application under this rule for review of a taxing officer's

decision may be made at any time within 14 days after that
decision or such shorter period as may be fixed by the Taxing
officer provided that no application under this rule for review of a
decision in respect of any item may be made after the signing of
the Taxing officer's certificate dealing finally with that item. 23

21
Order 50 rule 10 of the High Court Rules, Chapter 27 of the Laws of Zambia
22
Order 40 rule 3 (1) of the High Court Rules, Chapter 27 of the Laws of Zambia
23
Order 40 rule 3 (2) of the High Court Rules, Chapter 27 of the Laws of Zambia
11
 2.12 A Taxing master who has reviewed a decision in respect of any
item shall issue his certificate accordingly and, if requested to do
so by any party to the proceedings before him, shall state in his
certificate or otherwise in writing by reference to the objections to
that decision the reasons for his decision on the review, and any
special facts or circumstances relevant to it.24

2.13 Any party who is dissatisfied with the decision of a Taxing master
to allow or to disallow any item in whole or in part on review, or
with the amount allowed in respect of any item by a Taxing master
on any such review, may apply to a Judge for an order to review
the taxation as to that item or part of an item.25

24
Order 40 rule 3 (4) (3) of the High Court Rules, Chapter 27 of the Laws of Zambia
25
Order 40 rule 5 (1) of the High Court Rules, Chapter 27 of the Laws of Zambia
12