TITLE SEVEN — JUDGMENT
Rule 41. Costs; Attorney’s Fees
Costs to the Party Recovering Judgment. The party recovering judgment shall be entitled to recover all court costs and charges, which shall be included in the judgment, as provided by 7 R. Stat. § 132.203. Where the amount of costs is ascertainable at entry, the court shall include it in the judgment. Where it is not, the judgment shall so state, and the amount shall be fixed by a supplemental judgment upon a bill of costs under Rule 41(4).
Costs Defined. For the purposes of this rule, court costs and charges are:
fees assessed by the electronic filing system upon a filing, as provided in Rule 6.1, and paid by the party claiming them;
charges of the sheriff or other authorised server for service of process;
fees for expert witnesses;
expenses for court reporters; and
any other charge which a statute expressly makes recoverable.
Costs Beyond Those Collected by Game Mechanics. Beyond the costs collected by game mechanics, the court may award to the prevailing party only fees for expert witnesses and expenses for court reporters, as provided by 7 R. Stat. § 132.201. No other category of expense shall be awarded as costs beyond those collected by game mechanics. A cost already collected by game mechanics shall not be taxed a second time.
Bill of Costs; Objection; Taxation.
A party claiming costs shall file a bill of costs through the general filing channel not later than seventy-two (72) hours after the entry of judgment. The bill shall itemise each cost claimed, state the amount, identify the statute or subdivision of Rule 41(2) authorising it, and attach proof of payment or of the charge incurred.
Any other party may file an objection not later than forty-eight (48) hours after the acceptance of the bill of costs. An objection shall address each item objected to and state the ground.
The clerk shall tax costs upon the bill and any objection, and shall record the taxation upon the docket.
Any party may move for review of the clerk’s taxation not later than forty-eight (48) hours after it is recorded. The court shall review the taxation without deference and shall enter a supplemental judgment for costs.
The Clerk’s Record of Costs. The Clerk of the Superior Court shall maintain a record of all court costs assessed against a party to a proceeding, except costs collected through game mechanics, as required by 7 R. Stat. § 132.202. The record shall show the case number, the party assessed, the amount, the date of the assessment, and the fact and date of any satisfaction.
Costs Against the Government. Costs shall not be taxed against the State of Ridgeway, a county, a municipality, or an agency or department thereof, or against an officer sued in an official capacity, except to the extent that liability for such costs is expressly created by law. Sovereign immunity under 7 R. Stat. § 122.002 is not waived by the appearance of the Solicitor General.
Attorney’s Fees; Claim to Be by Motion. A claim for attorney’s fees and related non-taxable expenses shall be made by motion, unless the substantive law requires those fees to be proved at trial as an element of damages. The motion shall be filed not later than seventy-two (72) hours after the entry of judgment, and shall:
specify the judgment and the statute, rule, or other ground entitling the movant to the award;
state the amount sought or provide a fair estimate of it;
account for the hours claimed and identify the attorney who rendered each service; and
disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made.
Proceedings on a Fee Motion. The court shall, upon a party’s request, give an opportunity for adversary submissions upon the motion. The court may decide the question of liability for fees before receiving submissions upon the value of the services. The court shall find the facts and state its conclusions of law as provided in Rule 34. Fees are recoverable only for legal services actually rendered by an attorney admitted to practise in this State, except where a statute provides otherwise; a self-represented party who is not an attorney may recover costs but not attorney’s fees for that party’s own services.
Statutory Fee-Shifting for an Unsupported Claim or Defence. Upon the court’s initiative or the motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney, on any claim or defence, at any time during a civil proceeding or action, in which the court finds that the losing party or the losing party’s attorney knew or should have known that the claim or defence, when initially presented to the court or at any time before trial:
was not supported by the material facts necessary to establish the claim or defence; or
would not be supported by the application of then-existing law to those material facts,
as provided by 7 R. Stat. § 132.301. The order shall identify the claim or defence, state the finding, and apportion the award in equal amounts as the statute requires.
Sanctions for Improper Delay. At any time in a civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including the filing of any pleading or part of a pleading, the assertion of or response to any discovery demand, the assertion of any claim or defence, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay, as provided by 7 R. Stat. § 132.302.
Safe Harbour; How a Sanctions Motion Is Made. A motion by a party seeking sanctions under Rule 41(9) or Rule 41(10) shall be served but shall not be filed with or presented to the court unless, within forty-eight (48) hours after service of the motion, the challenged paper, claim, defence, contention, allegation, or denial is not withdrawn or appropriately corrected, as required by 7 R. Stat. § 132.303. Because the electronic filing system effects service only upon the clerk’s acceptance of a filing, and a motion under this subdivision must be served without being filed:
the movant shall transmit the motion, in the form in which it is to be filed, to the party and to the attorney of record to be sanctioned, in the proceeding communications of the case or by direct message, and shall not tender it to the electronic filing system;
service is complete upon transmission, and the movant shall record the date and time of transmission in Coordinated Universal Time;
upon the expiration of forty-eight (48) hours without withdrawal or appropriate correction, the movant may file the motion, and shall attach to it a copy of the motion as transmitted together with a statement of the date, time, and manner of transmission and of the recipients; and
the court shall deny a motion that does not comply with this subdivision, except where the court proceeds upon its own initiative.
Defences Against a Monetary Sanction. A monetary sanction shall not be awarded where:
the court determines that the claim or defence was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law, or for the establishment of new law, as it applied to the material facts, with a reasonable expectation of success;
as to the losing party’s attorney, the attorney acted in good faith based upon the representations of the client as to the existence of those material facts; or
the court acts upon its own initiative and issues the sanction after the voluntary dismissal or settlement of the challenged claims by the party to be sanctioned,
as provided by 7 R. Stat. § 132.304. Where subdivision (2) applies, no part of the award shall be entered against the attorney.
Relation to Other Sanctions Powers. This rule does not limit the court’s authority under Rule 11, Rule 26.3, Rule 38(16), or Rule 53, or the court’s authority to impose non-monetary sanctions. A sanction imposed under Rule 11 or Rule 26.3 is not subject to Rule 41(11).
Compensation of Appointed Counsel. In a proceeding governed by these rules in which the State Public Defender, an assistant public defender, or court-appointed counsel is appointed to represent a party, counsel is entitled to compensation for hours of legal services as provided by 3 R. Stat. §§ 161.301 and 161.302, at the rate and subject to the maximum prescribed by 3 R. Stat. § 161.303 for the State Public Defender and assistant public defenders, and by 3 R. Stat. § 161.304 for court-appointed counsel. Counsel receiving compensation from the represented party for the same services is not eligible for compensation under this subdivision.
Compensation for Filing Fees. The State Public Defender, an assistant public defender, and court-appointed counsel shall be compensated for filing fees paid, as provided by 3 R. Stat. § 161.305. Such compensation is aggregated to the maximum rate of compensation fixed by 3 R. Stat. §§ 161.303 and 161.304. A claim under this subdivision shall identify each fee by case number, by the Bates number of the filing upon which it was assessed, and by the amount paid, and shall attach the record of payment.
Compensation Filings. Counsel seeking compensation under Rule 41(14) or Rule 41(15) shall account for each hour billed and submit before the court an explanation of each billed hour, as required by 3 R. Stat. § 161.306. The compensation filing shall be filed before the clerk of the relevant court through the general filing channel, and is disbursed upon review. The clerk shall record each compensation filing and each disbursement in the record maintained under Rule 41(5).
Enforcement of an Award of Costs or Fees. An award of costs or attorney’s fees is a judgment for the payment of money and is enforceable as provided in Rule 44, Rule 50, and 7 R. Stat. §§ 132.101 through 132.126. No party may be held delinquent upon such an award except in accordance with 7 R. Stat. § 132.102.