Like there is a cost of doing business there is a cost to litigating.
The courthouse is not a place you just rush to “to get your pound of flesh”, “make the other party pay” or “make an example of the other party” without considering the cost of the entire exercise.
Costs have what may be considered to be a different meaning, in the court setting, for those who may be unfamiliar. They are generally not equivalent to the legal fees/expenses incurred by a particular party.
Costs may be fixed, prescribed, budgeted, assessed or wasted. The applicability and the approach to quantifying each of these is provided for in the Trinidad & Tobago Civil Proceedings Rules (CPR) or has been determined in various cases.
Traditionally, costs would follow the event i.e. the unsuccessful party would pay the successful party’s costs. But now, the Court has the discretion to determine who should pay costs. The Court can engage in issue-based analysis to determine where costs should fall by considering – the conduct of the parties, a party’s success on particular issues, settlement offers etc.
Our CPR also stipulates that a party may not recover costs except by order of the Court, CPR provision or via agreement between the parties. The Court may award:
- No costs or parties bear their own costs
- A particular amount with respect to another party’s costs
- Costs in relation to a specific part of the proceedings
- Costs from or until a particular date
In the more general sense of the word:
A phrase which is often used is, “The candle costs more than the funeral.” This occurs if the cost of bringing the action outstripped the amount of money a successful party actually recovered at the end of the matter.
This phrase is often used as a warning to litigants who sue without contemplating the cost of the exercise; and at the end of the matter they are sorely disappointed.
��� Litigation can be inevitable sometimes and it has its place. However, as a lot of litigation is a marathon; not a spirit, it may be prudent before initiating Court action to do a cost benefit analysis and possibly consider the opportunity cost and the time, energy and resources that need to be allocated for the duration of a court matter.
��� Corporates, high-profile persons and professionals consider whether there are any reputational costs? Is it worth it? Will a Gag Order or Sealing Order provide an adequate amount of protection from disclosure to prevent reputational harm?
Before taking it to Court, please properly count all of the costs!
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