Australia

Australia

Australian courts have wide discretion to award costs orders against either party to cover the opposing party's costs of litigation. The general rule is that costs follow the event. This means that the unsuccessful party will be liable to pay the litigation costs of the successful party. The aim of this rule is to achieve a just outcome by shifting the costs burden on to the party which is found to have either unjustifiably brought another party before the court or given another party cause to have recourse to the court to obtain their rights.

Where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants' relative success and failure. Courts may depart from the general rule by requiring a successful party to bear their own costs where there is good cause to do so. Such an outcome may be justified where, for example, a successful plaintiff is awarded only nominal damages, or a party succeeds only due to late and substantial amendments to their case.

Of particular strategic importance is the rule that generally a court will not award costs to a successful party which has obtained relief no more favourable than had already been offered by his or her opponent in settlement discussions. This rule is designed to encourage the early resolution of litigated disputes.

Costs orders are subject to a costs assessment process administered by the courts. It is unusual that a party will be able to recover all of its actual legal costs through this process. On a standard assessment, parties may recover approximately 60% to 75% of their actual costs. A higher rate of assessment, on an indemnity basis, may be employed where a party has engaged in unreasonable conduct in the proceeding.

All courts in Australia will charge fees for commencing civil proceedings (often referred to as a filing fee). Some jurisdictions, particularly superior courts, will also charge additional fees including but not limited to daily hearing fees (calculated by reference to the length of the trial), filing fees for notices of motions/applications and the issuing of subpoenas to third parties. These fees are set by the courts and are published on their websites. They are usually reviewed on a yearly basis. By way of example, the current rate (effective from 1 July 2023) for commencing proceedings in the Federal Court of Australia is AUD4,760 for corporations and the daily hearing fee for corporations can range from AUD3,180 (for the first four days) and AUD16,945 (for the 15th and subsequent days).

Last modified 14 Feb 2024

Austria

Austria

The Austrian civil procedure law provides a system of cost reimbursement. The unsuccessful party is required to reimburse the costs of the prevailing party; however, this is limited to costs that are necessarily incurred. The procedural costs are divided into court fees (which include the fees and expenses of witnesses, court-appointed experts and court interpreters), legal fees (e.g. fees of legal representation) and party expenses (which predominantly consist of travel expenses and loss of earnings due to attendance in court).

Court fees are subject to the Court Fees Act (Gerichtsgebührengesetz) and calculated on a graduated scale in accordance with the amount in dispute. Moreover, the costs depend on the court where the proceedings are pending. In cases involving amounts in dispute exceeding EUR350,000, court fees for first instance proceedings are 1.2% of the amount in dispute, plus EUR4,203. Court fees for appeal proceedings are calculated separately but are also based on the amount in dispute. The unsuccessful party is obliged to reimburse the court costs, but only to the degree prescribed in the Attorneys' Fees Act (Rechtsanwaltstarifgesetz).

As an exception to the principle that the unsuccessful party is to pay the procedural costs, the court can, in certain circumstances, also oblige one party to bear the costs of the entire proceedings or of a certain phase of the proceedings, regardless of whether that party was successful.

Last modified 7 Jul 2023

Bahrain

Bahrain

The costs of litigation in Bahrain can be divided into translation fees (if any), court fees (which include court appointed expert fees) and lawyers’ fees. 

Court fees are deemed to include: 

  • claim registration fees. When submitting a statement of claim to the competent court, the party must pay a court fee of approximately 2.5% of the claim amount to the clerk of the court; and
  • expert fees, which will be subject to the court’s discretion and vary on a case-by-case basis. 

Legal and other fees (such as translation fees) are not included in court fees.

The competent court has the authority to award costs, including lawyers’ fees, to be paid by the unsuccessful party. The Bahrain courts usually order the losing party to bear the court fees; legal and other fees are determined based at the sole discretion of the court. In practice, where any fees (other than court fees) are awarded, they are minimal and do not reflect the actual legal (or other) costs incurred by a party. Generally, the fees that are awarded in this regard are less than USD600. 

If both parties are unsuccessful in their claims, the competent court has the discretion to rule that either: 

  • each party will bear the costs that they have incurred; or
  • the total costs will be divided between the two parties; or
  • one of the parties will bear the total costs.

Last modified 19 Jul 2019

Belgium

Belgium

The court will order the unsuccessful party to bear the legal costs of the successful party, subject to a general discretion to make some other costs order. Where, for instance, the plaintiff claimed EUR100,000 in damages but was ultimately only awarded EUR30,000, the court could decide that costs should be split between both parties.

The costs relating to civil proceedings in Belgium are, at least in comparison to some other jurisdictions, fairly modest. The most noteworthy costs are the following:

  • The bailiff costs for serving the writ of summons on the defendant or to have the court's judgment served, which is generally around EUR300 (but could be higher if, for example, the summons is to be served abroad).
  • The court fee (rolrecht/droit de rôle), which is essentially a tax or duty, of EUR165 for most proceedings at the first instance level and EUR400 for cases before the Court of Appeal. The court fee will be collected by the Federal Tax Authorities (Federale Overheidsdienst Financiën/Service Public Fédéral Finances).
  • The fees and costs of a court-appointed expert or mediator.
  • The fixed statutory compensation for legal representation (rechtsplegingsvergoeding/indemnité de procedure), which is based on the value of the case and can exceptionally be decreased or increased by the court depending on the particulars of the case, such as complexity or the limited financial means of the party ordered to pay costs. Legal representation costs are capped by statute in accordance with a scale set by a Royal Decree. For cases with a value of over EUR1,000,000, the standard amount is EUR22,500 and can in any event not be higher than EUR45,000. In the majority of cases, this compensation only covers part of a party's lawyers' fees.

Furthermore, barring a few exceptions, judgments must be registered with the Tax Authorities and, at that stage, registration duties become payable. The registration fee is 3% of the principal amount that the unsuccessful party is ordered to pay and is levied when the successful party requests an authenticated copy of the judgment (which it will need in order to serve the judgment on the unsuccessful party).

Finally, the costs relating to the enforcement of a judgment are borne by party against whom enforcement is sought. Enforcement costs do not include lawyers' fees.

Last modified 20 Oct 2023

Brazil

Brazil

In Brazil, the unsuccessful party will be responsible for paying the litigation costs of the successful party. These litigation costs include:

  • the judicial fees; and
  • the other party’s attorney’s fees. 

The judicial fees vary in each state. In civil litigation cases, attorney’s fees will be fixed at minimum 10% and maximum 20% of the amount awarded in the judgment, the economic advantage of the party or, if it is not possible to measure it, of the total amount in dispute. Even though it is not common, the fees can be fixed at a lower rate in certain situations (for example, when the claim is dismissed).

When awarding attorney’s fees, the judge will consider:

  • the length of the proceedings;
  • the nature of the claim;
  • the professional attention to the case;
  • the place where the service was performed; and
  • the work provided by the lawyers.

The criteria for deciding the amount to be paid for attorney’s fees comprise subjective elements, including the degree of professional attention to the case. In general terms, it is possible to consider that an attorney who has adopted a proactive approach in the lawsuit (e.g. the attorney has complied with the judicial requests in a timely manner, provided the necessary documents and evidence in order to guarantee a better quality of judicial decisions and has cooperated with the opposing party’s attorney) is considered to have a high degree of attention to the case.

Finally, if the party is only partially successful, the courts may order a different percentage of the amount under dispute to be paid to each attorney based on the parties’ relative success or failure in the lawsuit.

Last modified 17 Oct 2023

Canada

Canada

Where a party to a Canadian proceeding is successful in obtaining relief in the proceeding (or in some interlocutory step in the proceeding, such as on a motion), the court will generally require any parties that opposed the relief to pay a portion of the successful party’s costs, namely, legal fees and disbursements (e.g. photocopying expenses, process server fees, experts’ fees, etc.). 

Where the parties have had partial success in the proceeding (or some step in the proceeding), courts may award costs having regard to the parties’ relative success. Though it happens rarely, courts may decline to award a successful party its costs where the court finds that the successful party’s conduct was objectionable. 

It is unusual that a successful party will recover all of its costs from the opposing parties. By default, a successful party is entitled to costs on a partial indemnity or party-and-party basis. While there are variations among jurisdictions and across levels of court, costs on a partial indemnity basis are typically 25-50% of the successful party's actual legal costs. In rare circumstances, parties may recover costs on a substantial indemnity or solicitor-and-client basis. Where this is the case, the successful party may be awarded 60-75% of its actual legal costs. Substantial indemnity costs may be awarded where the conduct of the unsuccessful party was reprehensible (as might be the case where an unsuccessful plaintiff’s accusations of fraud were found to be completely devoid of merit, or where the conduct of an unsuccessful party unnecessarily increased the time and expense of the proceedings). 

Where a party rejects an offer to settle, and then obtains a result at trial that is equal to or less favorable than the rejected offer, adverse costs consequences will normally accrue to the party. The rationale behind this approach is that the party rejecting the offer did not obtain a better result at trial and unnecessarily caused all parties to incur the additional expense of trial. 

Court fees (i.e. fees paid directly to the court for such steps as commencing a lawsuit, defending a lawsuit, or bringing a motion) are generally not more than CAD400 per procedural step. A party that succeeds in its lawsuit (or on some smaller step in the lawsuit, such as a motion) is generally able to recover its court fees from the unsuccessful parties.

Last modified 25 Sep 2023

Chile

Chile

In Chile, the unsuccessful party may be responsible for paying the litigation costs of the successful party. Litigation costs include:

  • the judicial fees; and
  • the other party’s attorney’s fees.

When awarding attorney’s fees, the judge may consider:

  • the length of the proceedings;
  • the nature of the claim and complexity of the proceedings;
  • the professional attention to the case and degree of involvement; and
  • the work and study provided by the lawyers.

Unlike some other jurisdictions, in Chile the costs are usually very low without representing the costs and expenses that the parties have actually incurred.

Last modified 10 Oct 2023

China

China

Pursuant to Article 13 of the Measure on the Payment of Litigation Costs, the claimant must pay fees known as “case acceptance fees” to the court at the time of filing the claim and it must do so within seven days of the court’s notification of payment. The acceptance fees are calculated by reference to the sum in dispute (or pursuant to the relevant laws if it is a non-property case). For example, for a monetary case where the sum in dispute is CNY1 million, the case acceptance fee would amount to CNY13,800 and would be calculated by adding together the costs under each of the staggered tiers, as set out below:

The amount claimed Applicable rate  Fees
For any amount no more than CNY10,000 A fixed fee CNY50
For any amount above CNY10,000 but no more than CNY100,000 2.5%

CNY2,250

(90,000 x 2.5% )

For any amount above CNY100,000 but no more than CNY200,000 2%

CNY2,000

(100,000 x 2%)

For any amount above CNY200,000 but no more than CNY500,000 1.5%

CNY4,500

(300,000 x 1.5%)

For any amount above CNY500,000 but no more than CNY1 million 1%

CNY5,000

(500,000 x 1%)

Total case acceptance fees: CNY13,800

Additional costs might be incurred if evidence is obtained outside of the PRC, where translation, notarization and legalization of the evidence is required. The court acceptance fees and other such out-of-pocket expenses would be paid by the unsuccessful party.

A court will also charge when a party requests it to enforce a judgment, an interim relief order or an arbitral award. Such fees are also calculated by reference to the sum in dispute.

Similar to the principle of “costs follow the event” in common law jurisdictions, as a general principle, the costs of an action are usually awarded to the successful party. However, lawyers’ fees fall entirely within the discretion of the court. The court may wish to follow the recommended fee scale issued by the government, which might be significantly lower than the actual lawyers’ fees. If the scale is used, the successful party may only be able to recover part of its lawyer’s fees.

Last modified 30 Oct 2023

Denmark

Denmark

The court fees for a civil lawsuit in Denmark are generally low and divided into two types of court fees:

  • a smaller fee for filing the writ of summons / initiating the lawsuit, which must be paid by the claimant when filing the writ of summons. A defendant filing a counterclaim must also pay a smaller fee; and
  • a fee to be paid before the oral hearing, which amount depends on the type of dispute and the value of the claim in question (range is typically between DKK3,000 – 160,000). A defendant filing a counterclaim must also pay such a fee.

In terms of recovery of attorney fees and other disbursements, the losing party of the dispute will usually have to pay all of its own costs, the court fees and the reasonable costs incurred by the successful party of the dispute, which will be determined by the court.

If the parties are partly successful and partly unsuccessful, the court may order them to cover the costs pro rata in accordance with their relative success or carry their own costs.

Last modified 20 Jul 2023

Czech Republic

Czech Republic

To initiate civil litigation, a party is obliged to pay a court fee. If the subject of the dispute is a monetary claim, the amount of the court fee is 5% of this monetary claim, with the rate being reduced to 1% on the amount exceeding CZK40,000,000 and no fee is charged on the amount exceeding CZK250,000,000. The law contains several exceptions to this basic rule for determining court fees for monetary claims. For non-monetary claims and demands, the court fee ranges from CZK1,000 to CZK25,000.

If an appeal is filed, a court fee is payable at the same rate as when the civil litigation was initiated.

An extraordinary appeal to the Supreme Court is subject to a court fee in the range from CZK4,000 to CZK28,000, depending on the type and amount of the claim.

The costs of legal representation are borne by each party during the civil proceedings. Other costs, such as the cost of expert reports, are also borne by the parties. However, if a party proposes the appointment of an expert through the court, the court shall order that party to pay an advance on costs in this respect.

At the end of the proceedings, the court shall order the unsuccessful party to reimburse the other party's costs according to the following rules and principles:

  • if the successful party has paid court fees, the unsuccessful party must reimburse them;
  • the unsuccessful party shall reimburse the successful party for the costs of legal representation determined in accordance with the so-called Tariff Decree. The Tarif Decree sets out that the amount of compensation depends on the value of the dispute and the number of procedural acts. In practice, the amount for reimbursement actually determined is usually lower than the actual costs; and
  • if the successful party has incurred other legally recognized procedural costs, the unsuccessful party must reimburse them.

In the event of partial success, each party is entitled to reimbursement on a pro rata basis and the more successful party is then entitled to the difference between the two amounts.

Last modified 17 Jul 2023

Finland

Finland

The costs of litigation can be divided into court fees and legal fees, the latter creating the most significant part of the costs. In a general civil law case, the court fee amounts to EUR530 in all court phases (EUR530 per court phase, i.e. a total of EUR1,590 iif the case proceeds to the Supreme Court). The unsuccessful party will usually be ordered to reimburse all reasonable legal costs (i.e. lawyer's fees and disbursements) of the winning party.

Where several claims have been made in the same case and some have been decided in favor of one party and others in favor of the other, the parties are, as a general rule, liable for their own legal costs. The court may modify this rule to reflect the parties' relative successes and failures in the case. It is important to note that there is a rule, based Supreme Court practice, pursuant to which a court will not award costs to a successful party if the relief generally obtained is no more favorable than an offer that has been made by its opponent in the settlement negotiations.

Last modified 9 Oct 2023

France

France

In theory, the successful party is entitled to ask the court to order the unsuccessful party to reimburse its legal costs (pursuant to Article 700 of the French Code of Civil Procedure). However, except in cases where a party proves to be of particularly bad faith, judges are reluctant to award costs on an indemnity basis and the reimbursement of legal fees rarely covers the lawyers' fees in full. In most cases, the court fees allocated will depend on the amount of the litigation at stake and will amount to EUR2,000 to EUR20,000, except for matters relating to intellectual property or arbitration awards/international matters, where the court fees to be expected are closer to the incurred fees.

Last modified 9 Nov 2023

Germany

Germany

The costs of litigation in Germany can be divided into court fees and lawyer's fees. As German law adheres to the “loser pays” rule, the losing party is liable for the court fees and the other party's statutory legal fees. The court and lawyer's fees principally depend on the amount in dispute. For instance, if the amount in dispute is EUR10,000, the court fees for the first instance proceedings are EUR798 and for the first appeal are EUR1,064. The statutory legal fees in first instance for the own lawyer would amount to EUR1,850.45 and the fees for the opposing lawyer would also amount to EUR1,850.45. Where higher amounts are in dispute, the court fees become higher than the statutory lawyer's fees. For the purposes of calculating the recoverable costs, the value in dispute is capped at EUR30 million on which sum the first instance lawyer's fees would be capped at EUR300,168 for each part, and court fees at EUR362,163. In addition to these fees, disbursements for expert witnesses and ordinary witnesses are also recoverable.

Parties without sufficient funds may apply for a grant of legal aid. Parties may retain their lawyers on the basis of hourly rates. However, in the case of court proceedings, these fees will usually exceed the statutory fees described above.

Last modified 12 Oct 2023

Hong Kong, SAR

Hong Kong, SAR

Hong Kong courts have a wide discretion to award costs orders against a party in order to cover the opposing party’s costs of litigation. The general rule is that the unsuccessful party will be liable to pay the legal costs of the successful party. Where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants’ relative success.

Costs orders are subject to a costs assessment process administered by the courts. It is unusual that a party will be able to recover all of its actual legal costs through this process. On a standard assessment, a successful party may recover approximately 60-70% of their actual costs. However, in certain circumstances, the courts may order the costs to be assessed on a more generous basis (such as on a common fund basis or indemnity basis) where the court is of the view that the successful party should recover a greater proportion of the costs it has incurred (such as when the opposing party has engaged in unreasonable conduct in the proceeding). If the parties cannot agree on the costs to be paid, the party which is awarded costs can proceed to have the costs assessed by the court (also known as taxation of costs).

In terms of fees payable to the courts, in general a claimant will only need to pay a nominal amount (approximately USD80 to USD130) in court fees to commence a civil action in Hong Kong. However, if the court is subsequently required by any party to undertake a taxation of costs, a taxing fee calculated on a sliding scale, generally at around 2-5% of the amount of legal costs claimed, will also be payable to the court by the party requesting the taxation.

Last modified 2 Nov 2023

Hungary

Hungary

When filing the statement of claim, the claimant must pay a court fee, which is a certain percentage of the claim's value, or a lump sum if the value cannot be determined. The court fee is capped at:

  • HUF1.5 million (approximately EUR4,500) in the first instance proceedings;
  • HUF2.5 million (approximately EUR8,000) in the second instance; and
  • HUF4.5 million (approximately EUR14,000) in the Curia's extraordinary revision proceedings.

During the proceedings, further court fees may be incurred (e.g. fees of judicial experts, and translation costs) which must be advanced and deposited by the party in whose interest the costs are incurred. Moreover, during the litigation, the parties have to pay their own costs, which are included in the procedural costs.

The court decides on the procedural costs at the end of the proceedings on the basis of the parties' winning/losing ratio. In principle, the losing party bears all the procedural costs, including the costs advanced by the successful party during the course of the proceedings. Legal fees are usually awarded by applying a calculation which progressively follows the case value. In practice this means that, in high value cases, lawyers' fees cannot usually be recovered in full by the successful party.

In some cases, irrespective of the outcome of the proceedings, the court may grant some relief from the procedural costs. This may either be due to exceptional personal reasons or the nature of the subject of the proceedings. In these circumstances, the court might relieve a party from the requirement to advance and/or bear any procedural costs, alternatively from advancing and/or bearing court fees.

Last modified 21 Jun 2023

Italy

Italy

The unsuccessful party is generally ordered to pay the other party's legal costs (including attorneys’ fees). The amount to be paid is decided by the court and usually represents only a proportion of the legal costs actually incurred.

If the losing party has commenced or carried on civil proceedings in gross negligence or in bad faith, the successful party can claim damages caused by the other party's behaviour (per Article 96 of the Italian Code) together with a fine of between EUR500 and EUR5,000.

As a general rule, Italian law does not provide for punitive damages.

Court fees vary depending on the amount in dispute and the stage of the proceedings (i.e. first instance, appeal or appeal to the Supreme Court (Cassazione)). They range from approximately EUR40 to EUR 4,000.

Last modified 31 May 2023

Ireland

Ireland

Court fees are fixed by orders of the different courts and the level of court fees depends on the court in which the case is brought. An updated list of fees can be found here.

Subject to certain exceptions, the general rule is that the successful party is entitled to recover its legal costs from the unsuccessful party (in addition to any damages awarded by the court). This covers both court fees and legal fees/attorneys’ fees. However, a party will rarely be awarded all of their legal costs. The general rule is that in practice a successful party normally recovers around 60 - 70% of their total costs incurred. However, the court has wide discretion when awarding costs, and may depart from the general rule depending on the circumstances of the case and the conduct of the parties.

Last modified 5 Dec 2023

Japan

Japan

In litigation, court costs comprise:

  • court fees (calculated by reference to the sums claimed and paid by the plaintiff at the time of filing, e.g. the fee payable in a claim worth JPY10 million (c. EUR79,000) would be JPY50,000 (c. EUR400));
  • experts' fees; and
  • costs of other services required for the court proceedings.

As a general rule, the losing party will be ordered to bear these court costs at the time of judgment. However, in cases where the plaintiff is successful on only part of its claim, costs will be apportioned between the parties by reference to the outcome. A court may order all successful parties to pay a certain portion of the costs in the interests of fairness. Moreover, lawyers' fees are not included in court costs; legal fees are merely regarded as one element of the damages to be claimed. In most cases, the amount of legal fees that can be claimed is limited to a maximum of 10% of the total damages awarded and is payable in addition to those damages.

Last modified 27 Oct 2023

Luxembourg

Luxembourg

In Luxembourg, it is important to note that there are no court fees for legal proceedings. However, it is common to incur bailiff fees in most proceedings, although these fees are typically nominal.

Regarding attorney fees, the general rule is that a person who engages an attorney to represent their interests in legal proceedings is responsible for paying the attorney's fees in full. However, there are certain conditions under which the judge may order the unsuccessful party to pay a procedural indemnity to the successful party.

To enable a judge to order a procedural indemnity, the winning party must make their request for such an order explicitly. For a claimant, this request can be made in the document initiating the proceedings (such as a petition or writ of summons); for a defendant, the request may be made during the course of proceedings.

The judge will assess the validity of the request, considering factors such as fairness, the incurred expenses not included in the general costs, and the actions taken by the successful party to avoid litigation. The procedural indemnity, which is at the judge's discretion, typically covers a portion of the lawyer's fees and other related costs (ranging from EUR500 to EUR5,000).

Additionally, a successful claimant can recover the costs directly associated with initiating the proceedings, such as bailiff's fees and translation costs, from the defendant – so long as the defendant is solvent. It is not necessary to make a specific request for these fees, but the judge must explicitly specify the party responsible for bearing these costs.

Last modified 15 Nov 2023

Kuwait

Kuwait

The costs of litigation in Kuwait can be divided into court fees and legal fees. Court fees are usually in proportion to the amount claimed. In some cases these fees are fixed (generally employment matters or if no particular sum is claimed) and in others, they are levied at 2.5% of the first KWD10,000 plus 1% of any amount claimed above KWD10,000.

The party against whom a judgment is given will usually be required to reimburse the opposing party’s legal fees and pay the court fees. However, the amount of the legal fees awarded is at the sole discretion of the judge. In practice, such amount is nominal and does not reflect the actual legal costs or expenses. The fees granted by the judge will cover the fees paid to the court as well as lawyer fees, which range from KWD50 to KWD500.

Last modified 19 Jul 2019

Mexico

Mexico

The Mexican Constitution provides that all courts must administer justice free of charge.

However, the main costs of litigation in Mexico include (i) attorneys’ fees; (ii) translation fees; and (iii) day-to-day administrative costs.

Courts are also entitled to award legal fees on litigators who have acted in bad faith, falsely or illegally, the purpose of which is to reimburse the opposing party for the costs and legal fees during the litigation, which is analyzed on a case-by-case basis.

Last modified 17 Oct 2023

Netherlands

Netherlands

The costs of litigation in the Netherlands can be divided into court fees, bailiff fees and legal fees.

The court fees depend on:

(i) the claimed amount; and

(ii) the capacity of parties.

  • At the district courts, court fees range between EUR86 (for persons of limited means) and EUR8,519 (for corporate entities in claims over EUR1,000,000).
  • Court fees are higher at courts of appeal, ranging between EUR343 and EUR11,379.
  • At the Supreme Court, the court fees range between EUR355 and EUR14,229. Bailiff fees vary between EUR80 and EUR500.

Apart from the “regular” court system, in the Netherlands parties can decide to litigate in front of the Netherlands Commercial Court (“NCC”) The court fees at the NCC in the first instance are around EUR16,000.

The unsuccessful party will usually be ordered to reimburse the opposite party's court fees. Furthermore, a fixed amount will be awarded as a reimbursement for legal fees. This amount depends on the number of procedural acts involved and is usually only a fraction of the actual legal fees (amounts between EUR500 for straightforward proceedings and EUR15,000 are common). Only in intellectual property proceedings the actual legal fees of the successful party must be reimbursed by the unsuccessful party.

Last modified 18 Oct 2023

New Zealand

New Zealand

New Zealand courts have wide discretion to award costs against any party to cover an opposing party's costs of litigation. The general rule is that "costs follow the event". This means that the unsuccessful party will be liable to pay the litigation costs of the successful party.

Costs are awarded based on a scale set under the relevant procedural rules (usually the High Court Rules in a commercial case). This provides set amounts for each step in the proceedings based on three rates of complexity of the matter - simple, standard or complex. Generally, a party will recover approximately one third of its actual costs.

Courts may depart from the general rule in various circumstances and have wide discretion over costs, for example:

  • where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants' relative success and failure;
  • increased costs may be ordered where the party opposing costs has contributed unnecessarily to the time or expense of the proceedings, or a party has refused to accept an offer of settlement that is more than the party ultimately recovered; or
  • indemnity (actual) costs may be awarded where a party has acted vexatiously, there is a contractual entitlement to indemnity costs, or the person in whose favour the costs order is made was not a party to the proceedings.

Various court fees apply for filing proceedings and hearing charges.

Last modified 31 May 2023

Norway

Norway

The general rule in Norwegian civil proceedings is that the successful party is entitled to recover its legal costs from the unsuccessful party. The court may depart from this general rule in certain circumstances, including: (i) if the unsuccessful party had good reason for having the case tried, for example if the case raises questions of principle interest and the court has been in doubt as to the result; (ii) if the successful party rejected a reasonable settlement offer; (iii) if the matter is important for the welfare of the unsuccessful party and there is a difference in strength between the parties, etc. Norwegian law also provides for awards of legal costs in cases where one of the parties has succeeded only in part, but nevertheless to a significant degree. Finally, costs may be awarded irrespective of the outcome of the case in rare cases, for example where costs are incurred due to a party’s omission.

In any case, only costs which are necessary and reasonably incurred are recoverable. The level of legal costs incurred in legal proceedings is a focus area for the Norwegian courts, meaning that the parties’ legal cost claims are more closely examined than the Dispute Act strictly requires.

It is common practice that successful parties are entitled to legal cost compensation even if they are represented by their own in-house counsel. The starting point in these situations is the successful party’s actual yearly costs for its relevant in-house counsel (factoring in wage, tax, pension fund payments etc.), which are then broken down into daily/hourly costs. The next step is then to allocate the relevant costs incurred in the matter. These costs are subjected to the necessity test, in the same way as the costs to external counsel.

The court fees vary depending on the length of the proceedings and are subject to a minor adjustment each year. The court fee for admission to the District Court for 2023 is NOK6,215. This includes the first day in court. If the action does not end with a judgment (for example due to settlement) the fee will be reduced. The fee for interim relief is NOK3,107 as at 2023.

Last modified 29 Oct 2023

Oman

Oman

Court fees (including experts’ fees) are generally recoverable by the successful party in Omani court proceedings, but only a nominal amount will be awarded for lawyers’ fees. Where neither party has been entirely successful in their claims, the court may decide that each party shall bear its own costs. The prevailing party may be ordered to pay some or all of its costs if:

  • the claim was undisputed by the defendant;
  • the prevailing party caused unnecessary costs to be incurred; or
  • the prevailing party failed to provide its opponent with the documents (or its contents) which the court deems to be conclusive in the matter.

The court fees payable for claims and appeals vary depending on the nature and value of the claim. They include the following:

  • Commercial disputes: 2% of the amount of the claim or appeal, with a minimum of OMR30 and maximum of OMR3,000.
  • Civil disputes: 2% of the amount of the claim, with a minimum of OMR10 and maximum of OMR30, and 2% of the amount of the appeal, with a minimum of OMR20 and maximum of OMR50.
  • Family dispute: OMR5 except the inheritance dispute calculated according to the civil disputes’ fees.
  • Labour dispute: there are no fees for labour disputes for employees. However, for the employer this will be calculated according to the commercial disputes’ fees.
  • For an appeal to the Supreme Court, the fees are OMR25, in addition to OMR as grantee and OMR10 if there is an application to suspend the enforcement.
  • There is no fee for enforcing the judgments.

Last modified 1 Dec 2023

Poland

Poland

The costs of legal proceedings in Poland are generally low. The general rule in commercial cases is that when a case is filed, the claimant has to pay the court fees. The court fees are 5% of the value of the dispute, but court fees are capped at PLN200,000 (around EUR45,000). The same court fees apply to appeal and cassation proceedings. In principle, the unsuccessful party pays the costs of the legal proceedings (court fees, attorneys' fees, and other expenses such as experts’ fees). However, the amount granted by the judge for attorneys’ fees must be within the limit prescribed by law and may not exceed six times the minimum rate (see below). The reasons for an increased rate may include:

  • the case is complicated;
  • the attorney’s workload was heavy; or
  • the value of the litigation.

In practice, courts often award the minimum rate. For instance, if the value of a dispute is between PLN2,000,000 (EUR450,000) and PLN5,000,000 (EUR1,125,000), the minimum rate is PLN15,000 (EUR3,400) and the maximum rate is PLN90,000 (EUR20,400), and if the value of the dispute is above PLN5,000,000 (EUR1,125,000), the minimum rate is PLN25,000 (EUR5,600), and the maximum rate is PLN150,000 (EUR33,600). Experts’ fees are also subject to regulation and are very low (usually between EUR1,000 and EUR7,000). The question of costs is decided in the last phase of judicial proceedings at the time of the judgment. The courts ask parties for advance payments on expert fees.

Last modified 2 Oct 2023

Portugal

Portugal

In all proceedings and without prejudice to the following paragraphs, the parties initially bear their own costs, including all legal expenses.

As a general rule, the losing party shall bear not only its own court costs but also the court costs (judicial fees) incurred by the successful party during the proceedings, as well as 50% of all costs incurred by both parties as compensation.

If the losing party has commenced or continued civil proceedings in gross negligence or bad faith, the successful party can claim damages caused by the counterparty’s behaviour.

Court fees vary depending on the amount in dispute and the stage of the proceedings (i.e. first instance, appeal or appeal to the Supreme Court of Justice). In ordinary proceedings for disputes with a value up to EUR275,000 and for the Courts of First Instance, the fees range from approximately EUR102 to EUR1,632. On appeals to both the Court of Appeal and the Supreme Court of Justice, the initial judicial fee is EUR816).

If the value of the claim is higher than EUR275,000, the amount in excess of that figure will be taxed at the end of the proceeding, for each stage. For example, in a EUR4.25 million claim, the initial judicial fee would be EUR1,632 in the Court of First Instance and the balance of the claim value (from EUR275,000 to EUR4.25 million) would be taxed at the end of the proceeding as follows:

First Instance Court fees:

  • Initial judicial fee: EUR1,632
  • Remaining judicial fee: EUR48,654
  • Total: about EUR50,286.00

Second Instance Court fees (in case of appeal):

  • Initial judicial fee: EUR816
  • Remaining judicial fee: EUR24,327
  • Total: about EUR25,143.00

Third Instance Court fees (in case of appeal to the Supreme Court of Justice, only admissible in certain circumstances):

  • Initial judicial fee: EUR816
  • Remaining judicial fee: EUR24,327
  • Total: about EUR25,143.00

At the end of the proceedings, both parties will have to pay the remaining judicial fee unless the court agrees to waive it, which often happens when the dispute is resolved before the final hearing, e.g. through a settlement agreement.

Last modified 22 Sep 2023

Qatar

Qatar

Court fees (including experts' fees) are generally recoverable by the successful party in Qatari court proceedings, but only a nominal amount will be awarded for lawyers' fees. Where neither party has been entirely successful in their claims, the court may decide that each party shall bear its own costs. The prevailing party may be ordered to pay some or all of its costs if:

  • the claim was undisputed by the defendant;
  • the prevailing party caused unnecessary costs to be incurred; or
  • the prevailing party failed to provide its opponent with the documents (or its contents) which the court deems to be conclusive in the matter.

The court fees payable for claims vary depending on the nature and value of the claim. The applicable court fees are also routinely amended and are not readily accessible on a centralized court website. The best source of information on current court fees is local counsel, who will be able to search the relevant court website.

Last modified 11 Dec 2023

Romania

Romania

The costs of litigation in Romania include court fees (approximately ranging between 1% and 10% of the value of the claim), fees related to obtaining evidence (e.g. expert reports) and lawyers' fees. As a general rule, court fees are paid by the claimant, fees related to the production of evidence are paid by the party that proposed the evidence, and both parties pay their respective lawyers' fees.

In some cases, the court may order the losing party to cover the opposing party's litigation costs. If the position of one of the parties is fully accepted, the court can only reduce the amount payable by the losing party for the successful party's lawyers' fees when they are considered disproportionate to the complexity and the value of the case.

Last modified 27 Oct 2023

Russia

Russia

The costs of litigation in Russia can be divided, practically speaking, into court fees (state duty, expert fees, etc.) and legal fees.

Court fees tend to be nominal; however, they depend on various factors, such as, the amount of the claim, the nature of claim, and the involvement of experts. State duty ranges between RUB6,000 (approximately USD100) for non-pecuniary claims and a maximum amount of RUB200,000 (approximately USD3,000) for state duty monetary claims.

The party against whom the judgment was made should reimburse the opposing party’s court fees. Reimbursement for legal fees is also possible. In practice, however, it is often the case that only a fraction of the actual legal fees is reimbursed.

Last modified 19 Jul 2019

Saudi Arabia

Saudi Arabia

There are no charges for filing or appealing a claim in any Saudi court at the date of writing this report. Generally, each party bears its own lawyers' fees. However, it is possible to claim reimbursement of a party's legal fees, and it is under the judge's discretion to award the amount they see fit or to reject the claim.

Last modified 19 Jul 2019

Singapore

Singapore

While costs are at the court’s discretion and subject to the reasonableness requirement, a successful party will generally be allowed to recover its costs (legal fees and disbursements) from the unsuccessful party, unless there are special reasons to depart from this starting position (e.g. costs were incurred due to unnecessary claims or issues, or due to misconduct or neglect). 

When awarding costs, the courts will have regard to any pre-trial offers or amicable resolutions (or failure to engage in such efforts), the scales of costs in the Rules of Court and the judge-issued cost guidelines in the Practice Directions.

The court fee payable for commencing an action depends on where the case is commenced and the claim sum. Where the claim is commenced in the High Court, the court fee is SGD500 for a claim of up to SGD1 million or SGD1,000 for a claim of more than SGD1 million. The court fee is SGD150 for a claim in the District Court and SGD100 for a claim in the Magistrate’s Court.  

Last modified 2 Oct 2023

Slovakia

Slovakia

In civil proceedings, costs are expenses incurred in connection with the exercise or defence of a right. However, under Slovakia’s laws, recoverable costs only include those costs which are proven, justified and reasonably incurred.

The court decides whether a party to the dispute is entitled to reimbursement for costs, even without an application, upon termination of the proceedings. The court determines the proportion of the costs by a percentage or fraction of the costs actually incurred by a party. In practice, the party against whom the judgment is given will usually be ordered to reimburse the opposite party’s court fees.

One of the most common costs is the court fee. This is the fee that must be paid in order to initiate court proceedings. The amount of court fees is determined by the Court Fees Act. The rate of the fee is indicated either as a percentage of the fee base or as a fixed amount. The amount of the court fee is typically 6% of the value of the subject matter of the proceedings, with a minimum fee of EUR16.50 and a maximum fee of EUR16,596.50. In commercial cases, a maximum fee of EUR33,193.50 applies. If the subject matter of the proceedings cannot be valued in monetary terms (for example, the case concerns determination of ownership rights of property), a fixed fee of EUR99.50 applies.

A special category of costs are the attorney’s legal fees and disbursements, the recoverability of which are determined in accordance with the provisions of the Decree on Lawyers’ Fees and Disbursement for the Provision of Legal Services (irrespective of the fee agreed by attorney and client for the provision of legal services). Accordingly, costs recovered at the conclusion of proceedings may well not be equal to the actual cost of the attorney’s fees.

Costs also include travel, subsistence, accommodation and evidence costs.

Last modified 1 Jun 2023

South Africa

South Africa

A court has wide discretion with regard to costs. A successful party is ordinarily awarded a costs order against the unsuccessful party.

There are different types of costs:

  • party-and-party costs: the standard costs order awarded is for the costs that are necessarily incurred for the purpose of litigation, to obtain justice, and protect the client’s rights, which is charged according to a tariff set out in the rules of court;
  • attorney-client costs: these costs orders entitle a party to recover more costs from the opposing party than he would have been able to recover on a part-and-party basis. These costs cover all costs that the attorney is entitled to recover from the client including costs, charges and expenses between attorney and client, according to a higher tariff. These costs orders are made because the losing party has agreed to pay such costs prior to litigation. A court may also make an attorney-client costs order to penalize a party that the court believes acted improperly; and
  • costs de bonis propriis: this costs order directs a legal representative to pay the costs instead of their client. This order is made when the court believes that it was the legal representative’s fault that certain legal costs were incurred. A court can also grant a de bonis propriis costs order against a person that acts in a representative capacity.

The parties to action and application proceedings do not pay any court fees in South Africa.

Last modified 18 Aug 2023

South Korea

South Korea

In South Korea, the winning party is generally entitled to a recovery of costs. The costs mainly consist of stamp taxes (i.e., filing fees), service of process fees, out-of-pocket expenses, and a portion of attorneys’ fees. Attorneys' fees are reimbursed only to the extent permitted by the Supreme Court rules. A full recovery of attorneys' fees is not possible. The final judgment of a court includes a decision on the allocation of costs of the proceedings.

Last modified 18 Oct 2023

Spain

Spain

The costs of the proceedings comprise the court fees for litigation, lawyers' fees, the fees of the legal representative and any fees incurred by experts (where relevant).

Each party is liable for the expenses and costs of the proceedings incurred at its request, which might include:

  • those disbursements which originate directly from, or are immediately rooted in, the existence of the proceedings; and
  • the party's costs relating to the payment of the fees of lawyers and legal representatives or deposits required for the submission of appeals (for example, the deposit for filing an appeal is EUR50).

The deposit and court fees for litigation are mandatory, fixed by law and payable when the claimant files its claim form. The amount of court fees varies depending on the type of proceeding and ranges between EUR150 and EUR1,200. The fee for ordinary proceedings is EUR300. Court fees are not usually reimbursed.

Court fees are fixed and must be paid for going to court and making use of the public service of the administration of justice though there are some exemptions (e.g., in cases which involve a decision in respect of fundamental rights). The events triggering the payment of a court fee in civil cases include:

  • commencing a civil claim or enforcement proceedings in respect of an out-of-court settlement; or
  • filing a counterclaim.

Last modified 20 Jul 2023

Sweden

Sweden

Court fees are low in Sweden (about EUR300). Payment of this court fee is made by claim, meaning that it will need to be paid once:

  • by the claimant when filing the writ of summons; and
  • by the defendant when (and if) filing a counterclaim.

Aside from the court fee for application, there are no more fees to the court in civil proceedings.

In terms of recovery of attorney fees and other disbursements the losing party will usually have to pay all of its own costs and the reasonable costs incurred by the opposite party. If the parties are successful and unsuccessful on different issues of the case, the court may order them to cover the costs pro rata in accordance with their relative success, or carry their own costs.

Last modified 18 Oct 2023

Thailand

Thailand

A court filing fee must be paid by the plaintiff when submitting a claim. The fee is calculated as a percentage of the claim value: 2% of the claim amount, for actions up to THB50 million, of the fee will not exceed THB200,000. Any amount above the THB50 million threshold, an additional 0.1% added to the claim amount. Most fees can now be paid online.

The court has discretion to award costs to the prevailing party, and in principle court fees are recoverable in the event of a successful claim. However, the legal fees recoverable by the successful party are only nominal. In deciding the amount of lawyers' fees to be reimbursed, the court take into consideration the complexity of the case, the time spent and the amount of work completed by the lawyer whilst handling the matter.

The amount of legal fees that can be claimed is generally limited to a maximum of THB 500,000. In practice, it is often much less.

The defendant can apply to the court for an order requiring the plaintiff to deposit money or security with the court for costs and expenses if either:

  • the plaintiff is not domiciled or does not have a business office situated in Thailand;
  • does not have any assets in Thailand; or
  • there is a strong reason to believe the plaintiff will evade payment of costs and expenses, if it is unsuccessful.

Third party funding and contingency fees arrangements for lawyers are neither permitted nor encouraged in Thailand.

Contingency fee arrangements are unenforceable in Thailand as the Supreme Court have found them to be against public order and good morals. The Supreme Court has also found that allowing an unrelated third party to fund a litigation in return for benefits would be against public policy.

Last modified 8 Nov 2023

UK - England & Wales UK - England & Wales

UK - England & Wales

Court fees for commencing a claim vary, but are broadly proportionate to the size of the claim. For example, the court fee for a claim of up to GBP300 is GBP35 or GBP25 if filed online. For a claim of between GBP10,000.01 and GBP100,000, the court fee is 5.0% of the total claim amount and for a claim for in excess of GBP200,000 it is a flat fee of GBP10,000. The costs incurred by each party will vary from case to case, depending on factors such as the value and complexity of the case, the duration of the case and the costs associated with their legal representatives.

As a general rule, the successful party in a litigation will recover its costs from the unsuccessful party. However, the court has a wide discretion to order otherwise. Where each litigant has enjoyed some success in the proceedings, courts may make costs orders that reflect the litigants' relative success. Courts can also depart from the general rule by requiring a successful party to bear their own costs where there is good cause to do so (e.g. when a successful claimant is awarded only nominal damages).

Where a party who has made an offer to settle under the CPR's Part 36 (Offers to settle) regime achieves a result which is better than the offer it made, it may recover more in costs than would otherwise have been the case. Conversely, if a party's costs have exceeded any budget which it has been required to submit to the court, it may be penalized for doing so. Successful parties will almost never recover all of their legal costs, which are assessed to establish whether they are proportionate and reasonably incurred.

Last modified 30 Jan 2024

UK - Scotland

UK - Scotland

Costs are called expenses in Scotland. Expenses are awarded at the court's discretion, although the general rule is that they follow success. The unsuccessful party will ordinarily have to pay the successful party's costs.

Expenses recoverable in the Scottish system are determined by reference to a statutory Table of Fees. This allows a block fee to be claimed for each element of the legal work undertaken in the case or the charging of a lawyer's time by reference to a fixed rate.

Generally, the Table of Fees allows the successful party to recover up to 60-65% of their actual costs, although in commercial cases it is often less than that. To compensate for this deficit, enhanced costs can be awarded in complex cases via an additional fee procedure.

The level of court fees depends upon the court in which the action is raised. The Court of Session, as the superior court, incurs higher fees than the Sheriff Court. Fees are generally payable by each party to the action. The fees are set out in Scottish Statutory Instruments (referred to as a Fee Orders). These are regularly updated by Fee Amendment Orders.

Last modified 18 Oct 2023

United Arab Emirates

United Arab Emirates

The DIFC court rules provide the court with considerable discretion when it comes to making orders as to costs. However, the general rule is that the unsuccessful party will be responsible for settling some part of the successful party's costs, and generally, any court fees that party has incurred. The court must have regard to all the circumstances when making an order as to costs. This includes consideration of the degree of success of the cases of the parties, their conduct during the proceedings and any offers to settle. There is also potential for the DIFC court to make no order as to costs. This is usually where the DIFC court finds that the merits of each party's case are balanced.

The DIFC court will assess the amount of costs due to the successful party on either a standard or indemnity basis. Where costs are assessed on the standard basis, the court will:

  • only allow costs which are proportionate to the matters in issue to be recovered; and
  • resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favor of the paying party.

On the other hand, where costs are assessed on an indemnity basis, any doubt as to whether costs had been reasonably incurred or are reasonable and proportionate in amount is interpreted in favor of the successful party.

It is also worth noting that the DIFC court is empowered to issue an interim costs order in favor of a party. These costs orders will usually reflect 50% of the costs incurred by the party, or what the court believes is the minimum it will recover.

The ADGM court rules, although somewhat less extensive than the DIFC court rules on costs and their recovery, broadly follow the framework of the DIFC court rules.

Each of the DIFC and ADGM courts have fee schedules relating to court proceedings and applications that are updated on a regular basis. There are a number of fees applicable to a claim including filing fees, application fees and hearing fees.

For substantive claims, and in general, fees are calculated on claim and counterclaim values and expressed as a lump sum plus a percentage.

At the time of writing (December 2023):

  • the DIFC court fees for money and/or property claims were:            

CLAIM VALUE

FEE

Up to and including USD500,000

5% of the value of the claim and/or the property with a minimum of USD1,500

USD500,000-USD1 million

USD25,000 + 1% over USD500,000

USD1 million-USD5 million

USD30,000 + 0.5% over USD1 million

USD4 million-USD10 million

USD50,000 + 0.4% over USD5 million

USD10 million-USD50 million

USD70,000 + 0.15% over USD10 million

Over USD50 million

USD130,000

 

  • the ADGM court fees for money and/or property claims were:

CLAIM VALUE

FEE

USD100,001-USD500,000

3% of the value of the claim

USD500,000-USD1 million

USD15,000 + 2%

USD1 million-USD 5 million

USD25,000 + 0.6%

USD5,000,001 - USD10 million

USD49,000 + 0.4%

USD10 million

USD69,000 + 0.15% to a maximum of USD99,000

All other claims

USD4,000



Last modified 1 Dec 2023

United States

United States

Applicable procedural rules in most state and federal courts provide for costs (not attorneys’ fees) to be awarded to the prevailing party following entry of final judgment. Costs eligible for recovery, which usually range from a few hundred to a few thousand dollars, include:

  • court filing fees;
  • fees for serving process;
  • witness fees and transportation expenses;
  • transcript preparation fees;
  • copying fees; and
  • compensation for court-appointed experts and interpreters.

As a general rule, the United States does not have a loser-pays system; instead, each party typically bears its attorney’s fees, regardless of whether it prevails in the dispute. There are limited exceptions where attorney’s fees and other costs (for example, expert witness fees) are recoverable. For instance, fees may be expressly authorized by the statute under which a particular claim is being litigated, or a contract between the parties may authorize the court to award them.

When fees are authorized, a request for fees is typically made to the judge presiding over the dispute, supported by evidence of the time spent on the matter. The amount of fees awarded varies depending on the claim at issue and the complexity of the case, with the presiding judge having broad discretion to decide what award is reasonable and appropriate. In simple cases, a fee award may be limited to a few thousand dollars. In highly complex litigation, courts have awarded fees ranging into the tens - and in some circumstances involving large, highly complex litigation, hundreds of millions of dollars.

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Last modified 22 Sep 2023

Australia’s courts operate under the common law legal system. Australia has a federal system of government, with legislative power divided between the federal branch of government and six state and two territory governments (for ease, we refer collectively to the states and territories as the state or states). Australia’s courts are similarly divided into eight separate state jurisdictions and a federal jurisdiction, which each operate on a parallel but independent hierarchy of courts. Lower courts are bound by previous decisions made by higher courts in the same hierarchy. Decisions made by higher courts are persuasive, but not binding, on lower courts in a different hierarchy (for example, decisions made by the Federal Court do not bind a state District Court).

State and federal courts broadly have jurisdiction over the application of legislation enacted by the state and federal parliaments respectively. The High Court of Australia is the ultimate court of appeal in Australia for all court systems. There are also tribunals created by specific legislation under state and federal jurisdictions. Courts often have jurisdictional limits as to the types of matters, and quantum in dispute, that they will hear. A dispute over a small quantum cannot be commenced, at first instance, before a state Supreme Court.

Australia’s official language is English. All Court proceedings will be conducted in English and judgments will be delivered in English.

In each state or territory of Australia, specific legislation imposes a time period before the end of which proceedings must be commenced for a claim or dispute.

The specific legislation is:

  • Limitation Act 1985 (ACT)
  • Limitation Act 1981 (NT)
  • Limitation Act 1969 (NSW)
  • Limitation of Actions Act 1974 (QLD)
  • Limitation of Actions Act 1936 (SA)
  • Limitation Act 1974 (TAS)
  • Limitation of Actions Act 1958 (VIC)
  • Limitation Act 2005 (WA)

These time periods vary from state to state and depend upon the type of claim. A failure to issue proceedings before the relevant time period expires is likely to result in that claim becoming time barred.

In most Australian states, actions in simple contract or tort must be brought within six years of either the date of breach (contract) or the date on which loss was incurred (tort).

The limitation period may be extended in some circumstances, for example where someone with legal incapacity (such as a minor or a person of unsound mind) has entered into a contract. Some jurisdictions also permit for the limitation period to be extended at the court’s discretion.

The process of litigation is broadly similar across Australian courts. Proceedings are initiated by a claim or application, which must be filed in the relevant court and by the initiating party on all parties to the proceeding. Parties will then exchange pleadings (such as statements of claim, defences, counterclaims, and replies) which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party. Timeframes for the progression of litigation are found in the civil procedure rules applicable in each jurisdiction. Generally, a defence must be filed within 28 days of service of a statement of claim.

For proceedings in the Federal Court, parties are required to file a genuine steps statement, which outlines the steps taken to make a sincere and genuine attempt to resolve the dispute prior to commencing litigation. Superior courts in the states may also require a party to litigation to provide details of attempts made to resolve a dispute before proceedings were commenced.

Once the exchange of pleadings is complete, parties will generally undertake the discovery (also known as the disclosure) process, and then go on to prepare their evidence for a final hearing of the dispute. It is common, particularly in complex litigation, for the parties to be obliged to attend court at regular intervals for directions hearings, in which orders are given to manage the conduct and timeframes of the case up until its final hearing.

Timeframes for each stage of proceedings vary greatly with the complexity and case management style of an individual matter and the specific jurisdiction in which the case is commenced. Each superior court in the states has in place specific practice notes or directions for the conduct of commercial disputes with the aim of ensuring that those commercial disputes are resolved in the most cost-effective and time-efficient manner possible. Generally, across all jurisdictions, parties will have 28 days from receipt of a claim to put on a defence. As noted above, the timetable from that point of time will depend on the nature of the dispute.

A straightforward commercial contract dispute will normally, court resources permitting, be resolved within 12 months.

Most state and federal courts require a corporate entity to be represented by a lawyer (which could include a lawyer employed by a company). Some jurisdictions dealing with small claims/employment issues may allow a company to appear by its director. Individuals may appear on their own behalf in most jurisdictions without a lawyer.

In Australia, the discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Australian courts strictly prohibit “fishing expeditions” through discovery. Discovery is usually undertaken after the close of pleadings (although in some courts in some states this may not be permitted until after evidence is complete) when the points of dispute between the parties have crystallized. Discovery may however be ordered, in limited circumstances, prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.

The practice of disclosure varies between those jurisdictions which mandate a general right of discovery and those in which the right is more limited. In the Northern Territory and the states of South Australia and Queensland, parties have a mandatory duty of disclosure which is discharged by the exchange of lists or copies of discoverable documents. In Tasmania, Victoria and Western Australia, a party may, by written notice to another party, require that party to make general discovery. In the Federal Court of Australia and New South Wales, the right to discovery is limited and requires an order of the court and will usually be limited to specific categories.

There have been recent attempts by some of the states’ superior courts to more tightly control the disclosure process. For example, the preparation of disclosure plans (which identify the categories of documents to be disclosed and how they will be disclosed), and the courts ordering that discovery being provided after the exchange of written evidence with a view to limiting the number of documents to be exchanged.

In the Federal Court and most state courts, discovery can be ordered to be made by non-parties to the dispute where the court is satisfied as to the likelihood of the non-party having relevant documents. Courts in Australia will also generally permit the issuing of subpoenas to produce documents to non-parties to litigation and this process will be more straightforward than seeking non-party disclosure orders.

Default judgment can be applied for in proceedings in any court where a defendant does not:

  • file a defence within the specified timeframe after a statement of claim has been served; or
  • fails to make an appearance at a hearing.

A default judgment is not a judgment on the merits of the claim, but rather a sanction for a party’s failure to comply with the rules or orders of the Court. Once a default judgment is ordered against a defendant, a defendant can, in limited circumstances, seek to challenge the granting of that default judgment. The defendant will need to file an application or motion to set aside the default judgment within a specified period of time and show cause for why (usually lack of notice of the claim or that notice was given of intent to defend but that notice was not brought to the attention of the court which granted the default judgment) the judgment should be set aside.

Judgments of civil courts in Australia can be appealed to a superior court. An appeal does not suspend the effect of the judgment being appealed, except in so far as a court having jurisdiction in the matter may direct. Civil procedure legislation in each jurisdiction sets out the rules and procedure for appeals. Ordinarily, it will be necessary to seek leave from the superior court to appeal. The Court of Appeal in each state, and the Full Federal Court, are the ultimate courts of appeal for each of those jurisdictions. Cases that emanate from the Federal Circuit Court are appealable to the Federal Court and then the Full Federal Court, whereas matters emanating from a State Magistrates Court are appealable to the Supreme Court and the Court of Appeal. Decisions made by the District Court (County Court in certain states) are appealable to the Supreme Court and decisions of the Supreme Court can be appealed to the state’s Court of Appeal. The High Court of Australia hears appeals from courts of appeal (sometimes referred to as the full court) in all jurisdictions, and has limited original jurisdiction (which predominantly relates to constitutional matters).

Parties generally, depending on the jurisdiction, have 28 days from the date of judgment or final order, to lodge an appeal in a civil matter to the relevant appeal court. Appeals will generally, because of the limitation of introducing new evidence in most civil appeals, be resolved more quickly than matters at first instance. Most appeals of civil matters will be heard and judgment given within six to eight months from commencement of the appeal.

All superior Australian courts have a wide power and discretion to grant both interlocutory orders and interlocutory injunctions. An interlocutory application, generally speaking, is an application which seeks any order other than a final judgment.

As in other jurisdictions, interlocutory injunctions are a species of interlocutory orders. Where those orders are sought on an urgent and temporary basis until a more extended form of relief is sought, they are often referred to as interim orders.

Interlocutory orders (including interlocutory injunctions) can require a party to undertake or refrain from a particular act, and can be granted before proceedings have commenced, once they are on foot and after judgment has been entered. Applications for these types of orders may be made by self-represented litigants or through legal representation.

The categories of non-urgent interlocutory orders that an applicant may seek are many and varied and include, by way of example, applications for security for costs, discovery (including preliminary discovery before proceedings have been commenced), the filing of expert evidence or orders for particulars. The evidence required to obtain non-urgent interlocutory orders will turn on the type of orders sought, although at the very least substantive interlocutory applications usually require a sworn affidavit to be filed.

The kinds of relief that can be sought by way of an urgent interlocutory injunction are equally varied. This is because the orders have the purpose of preserving the status quo until the rights of the parties can be determined finally, and the types of matters that can be heard by the court are vast. Common urgent interlocutory injunctions include applications for the preservation of property, the freezing of assets and applications to search premises to preserve evidence.

An applicant for an interlocutory injunction (either urgent or not) must prove that:

  • there is a serious question of law to be tried;
  • the balance of convenience favours the granting of the injunction; and
  • an award of damages (at the conclusion of the proceeding) would not be an adequate remedy.

It is possible for urgent interlocutory injunction applications to be heard by the court ex parte, without the opposing party's involvement. Any orders given ex parte will generally operate only for a limited period of time until the matter can be brought to a hearing. The duration of any ex parte order will ordinarily be limited to a period terminating on the return date of the summons, which should be as early as practicable (usually not more than a day or two) after the order was made, when the respondent will have the opportunity to be heard. For this reason appeals of ex parte interlocutory injunctions are not usually made to a superior court. The applicant will then bear the onus of satisfying the court that the order should be continued or renewed. A party seeking an interlocutory injunction will ordinarily be obliged to give an undertaking to pay any damages by the defendant suffered as a result of the injunction in the event that the claim for final relief at trial fails.

The decision to grant an interlocutory injunction can be on an urgent basis to a relevant appeal court. The appeal court will usually list the matter before a single judge to assess the urgency (often the same or the day following the day on which the appeal is lodged) and set a timetable based on the information provided at that first listing.

 

 

Australian state and federal courts can grant interim freezing orders, which restrain a defendant from disposing of property prior to judgment. These orders are a species of interlocutory orders. Such applications may be filed at the Supreme Court or Federal Court. A freezing order is normally obtained ex parte without notice to the respondent, before service of the originating process, because notice or service may prompt the feared dissipation or dealing with assets. A freezing order or an ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets. It would therefore be possible for a freezing order to encompass bank accounts as well as assets such as real property, art, securities or motor vehicles. Such orders would, however, normally allow for access to funds for reasonable expenses, living costs and payments in the ordinary course of a defendant or third party's business. A court may also order a freezing order against a third party, where it can be established that there is a risk that a judgment or prospective judgment may be unsatisfied as a result of a third party's power, possession or influence over the assets in question. The power to issue a freezing order is a function of courts' authority to prevent an abuse of the court process by the frustration of court-ordered remedies. A freezing order will be made only to preserve the status quo for the purpose of resolving a substantive cause of action brought by the plaintiff, and not as a stand-alone remedy.

The criteria for the issue of a freezing order is similar to the ordinary principles for the grant of interim relief, as discussed above, although the potentially serious impact on a defendant's property rights raises the threshold for the granting of a freezing order. This may be overcome by an undertaking as to damages given by the applicant of the freezing order, where the applicant undertakes to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person affected by the operation of the order. The High Court of Australia described freezing orders as '"a drastic remedy which should not be granted lightly". Broadly and generally, an applicant must show that:

  • the applicant has a good arguable case (in the substantive cause of action);
  • the refusal of a freezing order will give rise to a real risk that any judgment pronounced in the action will remain unsatisfied, or that the recovery of any judgment will be prejudiced by reason of the removal by the defendant of assets from the jurisdiction, or their dissipation within it; and
  • the balance of convenience favours the making of the order.

Australian courts have wide discretion to award costs orders against either party to cover the opposing party's costs of litigation. The general rule is that costs follow the event. This means that the unsuccessful party will be liable to pay the litigation costs of the successful party. The aim of this rule is to achieve a just outcome by shifting the costs burden on to the party which is found to have either unjustifiably brought another party before the court or given another party cause to have recourse to the court to obtain their rights.

Where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants' relative success and failure. Courts may depart from the general rule by requiring a successful party to bear their own costs where there is good cause to do so. Such an outcome may be justified where, for example, a successful plaintiff is awarded only nominal damages, or a party succeeds only due to late and substantial amendments to their case.

Of particular strategic importance is the rule that generally a court will not award costs to a successful party which has obtained relief no more favourable than had already been offered by his or her opponent in settlement discussions. This rule is designed to encourage the early resolution of litigated disputes.

Costs orders are subject to a costs assessment process administered by the courts. It is unusual that a party will be able to recover all of its actual legal costs through this process. On a standard assessment, parties may recover approximately 60% to 75% of their actual costs. A higher rate of assessment, on an indemnity basis, may be employed where a party has engaged in unreasonable conduct in the proceeding.

All courts in Australia will charge fees for commencing civil proceedings (often referred to as a filing fee). Some jurisdictions, particularly superior courts, will also charge additional fees including but not limited to daily hearing fees (calculated by reference to the length of the trial), filing fees for notices of motions/applications and the issuing of subpoenas to third parties. These fees are set by the courts and are published on their websites. They are usually reviewed on a yearly basis. By way of example, the current rate (effective from 1 July 2023) for commencing proceedings in the Federal Court of Australia is AUD4,760 for corporations and the daily hearing fee for corporations can range from AUD3,180 (for the first four days) and AUD16,945 (for the 15th and subsequent days).

In all Australian jurisdictions, a representative proceeding, or class action (as it is more commonly known in Australia) may be commenced by or against any one person as a representative of numerous persons (the minimum number required is generally seven people) who have the same interest in the proceeding and the claims brought give rise to a substantial common issue of law or fact. It is possible to commence a class action against multiple defendants and there is no requirement for every group member to have a claim against every defendant.

An overarching consideration of the courts in hearing a representative proceeding is whether it involves less delay, expense, and prejudice to the parties than alternative forms of trial. If not, the court may discontinue the proceedings.

The Federal, New South Wales, Victorian and, most recently, Queensland jurisdictions contain further statutory provisions in relation to representative proceedings, which are arguably more liberal and plaintiff-friendly than other jurisdictions. These jurisdictions allow representative proceedings to be brought where seven or more people have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law. Over 90% of all class actions filed in Australia from 1992-2009 were filed in the Federal Court of Australia.

When a representative proceeding is commenced, all potential plaintiffs who fall within a class become members of the class, whether they are aware of the claim or not. Members can then opt out of the proceedings before a date set by the court. All class members who do not opt out will be bound by the judgment of the court or by any approved settlement.

It is important to note that, although some states have yet to formally abolish the law of champerty and maintenance, outside of the US, Australia has one of the most developed class action industries, with a variety of large, class action plaintiff law firms and with many litigation funders having been active in the jurisdiction for over 20 years. This active funding industry has seen a continued increase in the number of class actions being commenced in Australia.

Cameron Maclean

Cameron Maclean

Partner
DLA Piper Australia - Perth
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Richard Edwards

Richard Edwards

Partner
DLA Piper Australia - Perth
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Corey Steel

Corey Steel

Partner
DLA Piper Australia - Perth
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Natalie Caton

Natalie Caton

Partner
DLA Piper Australia - Brisbane
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Liam Prescott

Liam Prescott

Partner
DLA Piper Australia - Brisbane
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Sophie Devitt

Sophie Devitt

Partner
DLA Piper Australia - Brisbane
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James Morse

James Morse

Partner
DLA Piper Australia - Sydney
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Gitanjali Bajaj

Gitanjali Bajaj

Partner
DLA Piper Australia - Sydney
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Tricia Hobson

Tricia Hobson

Partner
DLA Piper Australia - Sydney
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T +61 2 9286 8023
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Fleur Gibbons

Fleur Gibbons

Partner
DLA Piper Australia - Melbourne
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Gowri Kangeson

Gowri Kangeson

Partner
DLA Piper Australia - Melbourne
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T +61 3 9274 5428
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Kieran O'Brien

Kieran O'Brien

Partner
DLA Piper Australia - Melbourne
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T +61 3 9274 5840
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