Claims for litigation expenses commonly follow a judgment for either the claimant or the defendant. When such a claim is considered, the original case must first be examined. A review of the settled judgments of the general and commercial courts and of the Supreme Court shows that the claim is fundamentally one for compensation. The person entitled to the right seeks compensation for expenses incurred in pursuing the case, including lawyers' fees, expert costs, travel, and other expenditure.
For compensation to be awarded, the courts require all elements of tortious liability to be established: fault, damage, and causation. If any one element is absent, the right to compensation for expenses falls away. A party in whose favour a judgment is issued is therefore not automatically entitled to expenses in every case.
The right to bring a claim is among the general rights of individuals and falls within the exercise of a right unless the other party, or the circuit hearing the claim, establishes abuse or malicious use of that right. Another exception may arise when the underlying right was genuinely uncertain: the claim was not clear to the claimant or defendant and was clarified only by the court's judgment. In that situation, the court may find no entitlement to compensation because the uncertain right was exercised without abuse or malice.
