A special costs order allows a court to award legal costs above the amount that would normally be ordered under the standard costs determination.
This can occur where the court considers the standard costs award to be 'inadequate' due to the unusual difficulty, complexity or importance of the matter (see s 141(3) Legal Profession Uniform Law Application Act 2022).
Parties normally have 30 days from the date of judgment to apply for special costs (see Rules of Supreme Court O 66 r 51(3)). An extension of time is needed after this.
In Priest v Central Norseman Gold Corporation Pty Ltd [No 2] [2023] WASCA 385, the respondent mining company was successful in defending an appeal relating to the interpretation of mining safety laws. The mining company brought a special costs application over 15 months out of time. The other side, while not 'opposing' an extension per se, took no stance on the application.
The Court refused to grant the extension of time to apply for special costs.
A key reason was the lack of cogent explanation for the 15 month delay by the transnational law firm representing the mining company. The Court expressed understanding for personal issues facing the law firm's counsel, but held the firm should not have waited passively for over 12 months after those issues arose.
The Court outlined several key principles relating to extensions of time for special costs applications:
The consent of the parties does not determine the Court's discretion to grant an extension. The Court must still be independently satisfied the extension should be granted (see [13]).
Mere assertions without admissible evidence will not generally justify delay (see [14]-[19]).
Possible prejudice to the other side is only one relevant factor. The limit also promotes finality and prompt issue resolution (see Bartlett v Roffey [2023] WASC 3 at [46(d)(e)]).
The merits of the special costs application itself are relevant to whether an extension should be granted (see [23]).
Applying these principles, the Court refused to grant the extension due to lack of cogent evidence explaining the 15 month delay and lack of merit in the special costs application itself.
The takeaway is that parties should act promptly in seeking special costs and ensure they have solid justification for any delay.
Consent between parties will not make an extension automatic.
When considering an extension request, Courts will look at all factors including strength of evidence explaining delay and prospects of the special costs application itself.