In civil litigation, parties frequently encounter orders stating that costs are to be ‘costs in the case.’ For those unfamiliar with the terminology, it is reasonable to ask: what does ‘costs in the case’ mean, and how does it affect the litigation process?

Although the phrase appears straightforward, it carries important procedural and financial implications. It determines who may ultimately pay the costs, when those costs may be recovered, and how they are treated as part of the proceedings as a whole. A clear understanding of the term is essential for practitioners advising on risk, strategy, and potential exposure.

The Meaning of ‘costs in the case’

A direction that costs are ‘costs in the case’ defers the decision on liability for those costs until the conclusion of the proceedings. Rather than determining responsibility at an interim stage, the court allows the issue to be resolved alongside the final outcome.

In practical terms, this means that the party in whose favour judgment is ultimately entered will usually be entitled to recover those costs, subject to assessment. Such wording is commonly used in interim or case management orders where the court considers it inappropriate to determine costs immediately, particularly when the wider merits of the dispute remain undecided.

The approach reflects the general rule under CPR 44.2(2)(a):

“If the court decides to make an order about costs—
(a) The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party…”

In effect, the court determines at the end of proceedings which party is the unsuccessful party and therefore which party is the party to pay the costs.

In addition, Practice Direction 44, paragraph 4.2 provides:

“Where the court makes an order for costs at the conclusion of the proceedings, the party in whose favour the order is made is entitled to that party’s costs of the part of the proceedings to which the order relates.”

Together, these provisions explain why an order for ‘costs in the case’ aligns liability for interim costs with the ultimate outcome of the claim.

A similar approach applies where the court orders that the costs of an application are “costs in the case,” in which event those costs are determined by reference to the final outcome of the proceedings.

How ‘costs in the case’ Fits with Other Costs Orders

The court has a range of options when making an order as to costs, and different court orders will reflect different procedural considerations. By comparison with other directions, the position becomes clearer:

1. Costs reserved – The court postpones a decision on costs to a later stage. If no further order is made, such costs will usually become costs in the case.
2. Costs thrown away – These are costs incurred as a result of a procedural step being set aside or amended, and may be ordered to be paid by the party responsible for the inefficiency.
3. Costs in any event – The party in whose favour the order is made is entitled to recover their costs regardless of the ultimate outcome of the litigation.
4. Claimant’s or Defendant’s costs in the case/application – Liability for those costs follows the final result of proceedings.
5. No order as to costs – Each party bears its own legal costs for that aspect of the litigation. If an order is silent on costs, this is generally the default position.

Understanding these distinctions enables practitioners to assess exposure at each stage and advise clients with greater certainty.

Types of Costs That May Be Recovered

Where costs are ordered to be costs in the case, the recoverable sums will ordinarily include the categories of costs properly incurred in that part of the proceedings. These commonly comprise:

Profit Costs – Solicitors’ or legal representatives’ fees for work undertaken, calculated on hourly rates or fixed costs under CPR 45, with VAT where applicable.

Disbursements, including:

• Court fees, payable upon issuing proceedings or making certain applications.
• Expert fees, where independent evidence is required.
• Counsel’s fees, covering advocacy, advisory work, and drafting of pleadings.

Litigants in person may also recover reasonable costs and disbursements if successful, albeit at a prescribed hourly rate which is significantly lower than that of qualified legal representatives.

The fact that costs fall within a ‘costs in the case’ order does not render them automatically recoverable in full. They must still satisfy the tests of reasonableness and proportionality at assessment.

Recovering Costs

Where costs have been ordered to be costs in the case, recovery ordinarily takes place at the conclusion of proceedings through the detailed or provisional assessment process. The receiving party prepares a Bill of Costs and serves a Notice of Commencement on the paying party, thereby initiating formal assessment.

The paying party may challenge the sums claimed by serving Points of Dispute, contesting the necessity, reasonableness, or proportionality of the costs incurred. The receiving party may respond with Points of Reply, and negotiations frequently follow. Many matters are resolved by agreement without the need for a contested hearing.

If a settlement cannot be achieved, the court will determine the matter. Higher-value disputes may proceed to a detailed assessment hearing, whereas lower-value matters are often determined by provisional assessment on paper. Throughout this process, careful preparation and strategic presentation remain essential. An order for costs in the case determines liability in principle, but it does not remove the requirement to justify the quantum claimed.

Even where a party has been awarded costs, recovery will depend upon proper assessment and the court’s view as to reasonableness and proportionality.

Practical Implications of ‘costs in the case’

An order for costs in the case carries practical consequences beyond simple deferral. It reinforces the general rule that costs follow the event, while allowing the court flexibility to determine the issue at an appropriate stage.

For the successful party, such an order ensures that interim costs are preserved and may be aggregated into the final costs claim. For the opposing party, it represents contingent exposure which crystallises upon judgment. This dynamic often influences decisions regarding interim applications, settlement negotiations, and litigation strategy more broadly.

It is also important to recognise that scrutiny of costs is not postponed indefinitely. Even though liability is deferred, the costs incurred must still be properly recorded and proportionate to the issues in dispute. A costs in the case order does not guarantee recovery in full; it simply postpones the allocation of responsibility.

How Can Greener Costs Assist?

Orders stating that costs are ‘costs in the case’ can have lasting financial implications. Effective recovery requires careful preparation, technical knowledge of the Civil Procedure Rules, and strategic handling of the assessment process.

To discuss how Greener Costs can assist with issues arising from a ‘costs in the case’ order, please contact our team at info@greenercosts.co.uk or complete the enquiry form below for a confidential, no-obligation discussion.