Definition
A pecuniary allowance made to the prevailing party in litigation, recoverable from the losing party, for the expenses of prosecuting or defending a suit or a distinct proceeding within a suit. Costs are not the same as damages and not the same as attorneys' fees — they are a specific, procedurally governed category of litigation expenses that a court may award by rule, statute, or judicial discretion.
The term carries two related but distinct meanings in legal usage:
1. Party costs. The allowance one litigant may recover from the opposing party upon a favorable judgment. These are typically itemized and "taxed" (calculated and approved) by the court clerk under procedural rules. In federal practice, the categories of taxable costs are enumerated by statute.
2. Attorney's or solicitor's costs (billing costs). The charges an attorney or solicitor is entitled to recover from the client for professional services rendered — legal advice, attendances, drafting, copying, conducting proceedings. This sense is more prominent in English and Commonwealth practice but surfaces in American legal sources as well, particularly in older materials.
In either sense, costs are a creature of positive law. At common law, no costs were recoverable by either plaintiff or defendant; the right to costs is entirely statutory or rule-based.
---
Common Language
Modern common usage (Wiktionary): Third-person singular simple present indicative of "cost" — a verb form with no independent legal significance.
Historical common usage (Webster's 1913): "Costs" as a plural noun meaning the amount paid or charged for something; expenses generally.
The gap between common and legal meaning is substantial. In ordinary English, "costs" means expenses of any kind. In legal usage, "costs" is a term of art describing a specific, court-regulated category of litigation expenses that one party may be ordered to pay another. Not all litigation expenses are "costs" in the legal sense, and the question of which expenses qualify as taxable costs is a formal legal determination — not simply an accounting of what was spent.
---
Common Confusion
Costs vs. Attorneys' Fees: The most persistent confusion. In American federal practice, attorneys' fees are generally not recoverable as costs unless a specific statute authorizes fee-shifting (the "American Rule"). Taxable costs under 28 U.S.C. § 1920 include filing fees, transcript costs, witness fees, and similar items — not counsel's hourly charges. Many researchers conflate a fee award with a costs award; they are procedurally and substantively distinct.
Costs vs. Damages: Costs are awarded as a procedural incident of litigation, not as compensation for the underlying wrong. They are collateral to the merits judgment.
---
Core Elements
In the party-costs sense, a costs award typically requires:
- A judgment or final order establishing a prevailing party (some statutes extend costs to partial prevailing)
- A procedural vehicle: statutory authorization, court rule, or contractual fee-shifting provision
- Taxation: itemization and approval of specific claimed expenses by the court or clerk
- Limitation to allowable categories: only those items enumerated by rule or statute qualify, regardless of what was actually spent
---
Recognized Forms
/SUBTYPES
Taxable costs: Items specifically authorized by rule or statute for recovery, subject to taxation by the clerk. In federal court, governed by 28 U.S.C. § 1920.
Costs of suit: A synonym in older usage for the full allowance of recoverable litigation expenses upon judgment.
Bill of costs: The itemized document a prevailing party submits for taxation; the formal mechanism by which costs are assessed.
Security for costs: A bond or deposit a defendant may seek from a plaintiff to secure payment of costs should the plaintiff lose, particularly relevant when the plaintiff is a foreign party or appears judgment-proof.
Costs in contentious proceedings: Used in English ecclesiastical and probate practice; identified in Rapalje & Lawrence as a distinct procedural context with its own rules.
---
Why It Matters in Research
The statutory nature of costs is the first research trap. Because costs are entirely a creature of statute and rule, a common-law case or a treatise predating a modern costs statute cannot be read as authority for what is recoverable today. Bouvier and Burrill both note expressly that no costs were recoverable at common law — this is essential context when reading pre-statutory case law that discusses costs.
The federal/state divide matters enormously. Federal taxable costs are governed by 28 U.S.C. § 1920 and Fed. R. Civ. P. 54(d), which create a presumption in favor of costs for the prevailing party but limit what categories qualify. State courts frequently have far broader or narrower costs schedules; researchers should not transfer federal costs doctrine to state court research without checking the applicable state statute.
The American Rule creates a research bifurcation. In American sources, "costs" and "attorneys' fees" are discussed separately. In English sources — including Rapalje & Lawrence and much of Bouvier — solicitor's costs and party costs are often discussed together because English practice allowed broader recovery. Researchers using English or Commonwealth materials must consciously separate the two strands before applying principles to American practice.
Historical sources treat "costs" as inseparable from the court officer fee structure. Burrill's definition includes "fees of attorneys, solicitors and other officers of court" as part of costs, reflecting an era when court officers were compensated through scheduled fees rather than salaries. Modern American practice has largely separated officer fees from party costs, so this conflation in historical sources can mislead.
The Law Mind Civil Procedure corpus (civpro_142) covers the federal framework — Rule 54(d) and § 1920 — in detail and is the recommended starting point for federal costs research.
---
Historical Dictionary Support
The historical dictionaries converge on the core definition: costs are an allowance to a party for expenses incurred in litigation, distinguishable from fees paid to court officers. Bouvier, Black's (both editions), Burrill, and Anderson's all articulate this distinction explicitly. The alignment is unusually clean for a procedural term.
The more useful divergence is in scope. Burrill's definition, rooted in English equity and common law sources, is the most expansive — including "any other proceeding at law, or in equity" and explicitly listing disbursements as a component. Black's (both editions) focuses tightly on the party-allowance function. Rapalje & Lawrence is the most analytically careful, expressly distinguishing attorney-client costs from inter partes costs — a distinction the other dictionaries blur.
Bouvier's note that "no costs were recoverable by either plaintiff or defendant at common law" is the single most important historical datum in these entries. It establishes that everything a researcher finds about costs in modern sources derives from legislative and rulemaking history, not common law development — a methodological point that shapes how sources must be read.
What the historical sources miss: they predate the American Rule's full articulation and the modern fee-shifting statute landscape. None adequately addresses the costs/attorneys' fees distinction as it operates in contemporary federal practice.
---
Jurisdictional Note
Federal courts follow a narrow taxable-costs regime under 28 U.S.C. § 1920 and Fed. R. Civ. P. 54(d), with a presumption favoring cost awards to the prevailing party. State courts vary widely — some follow detailed costs schedules, others grant broad judicial discretion. English and Commonwealth practice continues to allow substantially broader recovery, including solicitor's fees as a component of costs, making English authorities unreliable guides to American practice on this point.
---
Encyclopedia Cross-Reference
civpro_142: Costs and Taxation of Costs — Rule 54(d) and 28 USC 1920 (The Law Mind Civil Procedure & Evidence Encyclopedia)
---