Is an application to vary a costs award a separate proceeding?

Proceedings under Article 248 of the Code of Civil Procedure to vary a judgment as to costs, and appeals against orders made under that provision, are not separate proceedings. They continue the original case for the purpose of deciding whether the parties’ costs in that instance are payable and in what amount.

Article 248 provides a remedy for an incorrect costs award without challenging the judgment on the merits. The court may supplement its ruling where costs were not awarded or vary it where they were incorrectly assessed. The interest at stake is financial, but the costs issue is not a separate matter for legal representation. Further costs should therefore not accrue in proceedings to award costs. The contrary would run counter to the purpose of the law and to Article 78 and the following provisions of the Code.

The Supreme Court of Cassation has consistently held that costs are not payable in interlocutory appeal proceedings against an Article 248 order. Examples from its Civil College include Order No. 60189 of 28 June 2021 in interlocutory civil case No. 2779/2020, Fourth Civil Division; Order No. 218 of 3 August 2020 in case No. 872/2020, Fourth Civil Division; Order No. 60295 of 17 November 2021 in case No. 2625/2021, Fourth Civil Division; and Order No. 60379 of 22 December 2021 in case No. 1495/2021, Third Civil Division.

Under Interpretative Decision No. 6/2012 of the General Assembly of the Civil and Commercial Chambers of the Supreme Court of Cassation, costs may be awarded only where it is proved that they were incurred in the proceedings, in accordance with Article 78 of the Code.

Evidence of litigation expenses submitted for the first time with an application under Article 248(1) will be rejected as out of time.

This article does not constitute legal advice or an opinion on a particular case, nor does it engage a lawyer at Tomovi Law Firm to act in any specific matter. For assistance, consult a lawyer who represents clients in court.