When it comes to recovering legal fees in South Africa, not all costs are treated equally. The two most common types? Party-and-party and attorney-and-client costs. Here’s a quick breakdown of what they mean and why it matters.
What Are Party-and-Party Costs?
Party-and-party costs refer to the legal fees that the successful party can recover from the losing party after a case. These costs only cover the work that was strictly necessary to conduct the litigation, such as drafting key pleadings, serving documents, or attending court.
They are calculated according to a prescribed tariff and do not include all the time or effort your attorney may have spent behind the scenes. In short, party-and-party costs represent the “bare bones” of litigation recovery.
What Are Attorney-and-Client Costs?
Attorney-and-client costs go a step further. These are awarded either by the court or based on a contract, and they allow for broader recovery of legal fees. This may include additional consultations, internal preparation, or correspondence that isn’t strictly necessary for the litigation, but still forms part of the legal process.
Attorney-and-client costs are often awarded as a punitive measure where there has been misconduct or unreasonable behaviour during litigation, but they can also arise from clauses in contracts between the parties.
Key Differences:
The main difference between the two is the scope of what can be claimed. Party-and-party costs are limited to necessary litigation steps and are more common, while attorney-and-client costs are wider in scope and less frequently awarded.
Party-and-party costs are usually paid by the losing party, whereas attorney-and-client costs might be paid by the client or the losing party if the court orders it. In practice, party-and-party costs are the default, and attorney-and-client costs require a specific reason or contractual backing.
