Hilary Muza 
A lot of people believe that going to a civil court to assert one’s rights, or defend one’s interests is an easy and a pretty cheap job to do, but I want to dispel any such mischievous thoughts because litigation is no longer as cheap as it used to be.
A discussion on the subject of legal costs may assist those who still labour under the false impression that justice in civil-related matters comes absolutely for free.
As a starting point, I must distinguish the various categories of costs that one may be made to pay when going through litigation.
What most members of the public know are what are known as legal practitioner and client costs, and as their name suggests, these are costs paid by a client to his/her lawyer for services rendered.
Then there are what are called party and party costs, these being costs that would have been incurred by a party to legal proceedings and that the losing party is ordered by a court to pay him/her.
The purpose of an award of costs to a successful party is to indemnify him/ her for the expense to which he will have been put through having been unjustly compelled to initiate or defend litigation.
Party and party costs do not include all the costs that a litigant may have incurred, but only those costs, charges and expenses that appear to have been necessary or proper for the attainment of justice or for defending the rights of a party.
For example, such costs, charges and expenses may not include costs paid to one’s lawyer.
Hence, where a party has been awarded costs against another, such costs are his and not those of his lawyer.
Presently, and in the High Court, party and party costs are calculated in terms of a Statutory Instrument, (the High Court Fees Regulations), and as indicated, this tariff applies to costs that one incurs during the litigation proper.
Such costs may include the issuing of summons, or court application, filing appeals, application for trial dates, and without exhausting the list, issuing a writ of execution or attachment.
What needs to be appreciated is the seeming unfairness of this legal costs structure, because an award of this type of costs invariably fails to sufficiently compensate a successful party for all the expenses that he/she would have incurred.
Attorney and client costs are those that a lawyer is entitled to recover from his client for the professional services rendered by him/her as well as for any disbursements made.
These costs are payable by the client whatever the outcome of the matter, and are not dependent upon an award of costs by the court.
In special cases, the court may award a litigant costs against his adversary on an attorney and client scale.
In that event, the successful party will be entitled to recover from the losing party all the money that he paid his lawyer as fees.
An award of attorney and client costs serves to register the court’s displeasure with a litigant’s conduct. These costs when awarded, will be punitive in nature, and they are ordered in cases where a litigant would have manifested dishonesty, or malicious conduct.
Where one institutes proceedings that are vexatious, reckless or frivolous, the court can also slap you with such an award as punishment not only for dragging the other party in unnecessary litigation, but also for wasting its otherwise valuable time.
Other cases were such awards have been made is where a litigant’s conduct amounted to stubbornness that is highly reprehensible, or where an attempt is made to trifle the court, or where the claim is fraudulent, or where scurrilous and unjustified attacks are made on another party.
Our courts will not resort to this drastic award lightly, due to the fact that a person has a right to obtain a judicial decision against a genuine complaint.
There is a second category of punitive costs known as costs de bonis propriis and these are awarded when a person acts in a representative capacity for example, a legal practitioner, an executor of an estate, a liquidator or judicial manager of a company, a director, a curator, a guardian of a minor, or any agent for that matter.
With reference to legal practitioners, where such an order is made, it means the lawyer will have to pay the successful party from his own pocket all costs and expenses that the party would have incurred in the litigation.
In the past, there are cases where a legal practitioner has been made to pay these costs where he had acted in an irresponsible and grossly reckless or negligent manner, by misleading the court and causing the other party prejudice.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.
