Allocation of Costs and Fees of Civil Litigation in Federal Supreme Court Cassation Division: ‘Does One Approach Really Fit All’?

Abstract

In civil litigation resolving disputes through the regular courts has its own costs and fees, either compulsory or voluntary, but inevitable. Allocation of these costs and fees is one of the most contentious post-judgment issues in all courts. Litigant parties have competitive interest and claim, while justice and public interest may support either. To adopt the most efficient and equitable allocation system, jurisdictions tend to adopt indemnity, non-indemnity, or judge-based principles with their respective exceptions.
In Ethiopia, the civil procedure law left allocation of costs and fees of civil litigation to the full discretion of courts. Nevertheless, there are no guiding principles on how courts can exercise this discretion. Unlike other jurisdictions that adopted similar approach, the Ethiopian legislature and courts fail to develop uniform guiding rules and principles for allocation of costs and fees. In its decisions, the Ethiopian Federal Supreme Court Cassation Division has adopted the non-indemnity principle rigidly, though it has quashed decision of lower courts for lack of adopting ‘loser pays’ (indemnity) principle.
The main theme of this article is, therefore, to investigate if one approach really fits to all cases irrespective of the outcome of the case, litigation behavior of the parties and costs incurred in light of these theories and principles in a comparative perspective. The article argues that by any standard this approach cannot pragmatically fit to all cases, parties, and litigation. It further argues that lack of research based workable allocation regime is exacerbating the backlog and delay of cases of the Cassation Division.