Definition
"Party and party" is a costs standard in civil litigation referring to the relationship between the opposing litigants themselves — plaintiff and defendant — as distinguished from the private relationship between either litigant and their own attorney. The phrase appears almost exclusively in the context of taxing costs: when a court awards costs on a party-and-party basis, it allows recovery of those expenses reasonably and necessarily incurred in conducting the litigation, measured by what is fair as between adversaries. This standard is less generous than the attorney-and-client (or solicitor-and-client) scale, which captures the fuller scope of legal expenses a client actually owes their own lawyer.
The distinction is structural: party-and-party costs are what the losing side must pay toward the winning side's legal expenses. Attorney-and-client costs are what a client owes their own counsel regardless of the outcome or any court order.
Common Confusion
"Party and party" is most often confused with "attorney and client" costs (also called solicitor-and-client costs in Commonwealth jurisdictions). The two are not competing standards for the same thing — they operate on different axes. Party-and-party costs govern what flows between adversaries by court order. Attorney-and-client costs govern what flows between a litigant and their own lawyer by contract or court supervision. A successful litigant awarded party-and-party costs will almost always find that those costs fall short of what they actually owe their own attorney, because the party-and-party scale excludes charges that are reasonable between lawyer and client but not properly visited on the losing opponent.
Why It Matters in Research
This term surfaces almost entirely in historical costs jurisprudence and in older procedural texts. Researchers working in pre-twentieth-century equity and common law records — particularly English, Canadian, and Australian sources — will encounter it regularly in orders and taxation proceedings. It is the older vocabulary for what modern systems often call "standard basis" costs (as opposed to "indemnity basis" costs), but the mapping is imprecise and should not be assumed.
Key research traps:
First, the phrase has largely dropped out of American legal usage. U.S. federal practice and most state systems do not use the party-and-party/attorney-and-client framework explicitly, instead working through fee-shifting statutes and local rules. Researchers importing this terminology into an American context risk anachronism or confusion.
Second, in historical English and Commonwealth sources, the gradations of costs scales could be numerous and jurisdiction-specific. "Party and party" at one end and "solicitor and own client" at the other were anchors, but intermediate scales existed. Assume nothing about which scale applied in a given historical proceeding without examining the relevant rules of court for that jurisdiction and period.
Third, when reading older equity decisions, costs orders often specified the scale expressly. An order silent on scale may have carried a default presumption — but that default varied by court and era. This matters when reconstructing what a historical judgment was actually worth to the winning party.
Fourth, the phrase is a natural predecessor to modern "standard costs" analysis. Researchers tracing the doctrinal development of fee-shifting, indemnity principles, or litigation financing will find party-and-party costs a necessary stop in that genealogy.
Historical Dictionary Support
Black's Law Dictionary defines the phrase concisely and correctly: it denotes the contending parties — plaintiff and defendant — as distinguished from attorney and client, and its operative field is the taxation of costs. Black's cites Brown, a reference to a legal dictionary or treatise of the era rather than a reported case.
The entry in Black's is minimal by design. The phrase is procedural scaffolding, not a substantive doctrine, and historical dictionaries treated it accordingly. What the historical sources do not capture well is the practical consequence: the gap between party-and-party costs and attorney-and-client costs was often substantial, meaning that even a fully successful litigant bore meaningful unrecovered legal expense. That economic reality drove reform movements in costs law across Commonwealth jurisdictions throughout the twentieth century and is background context that a historical dictionary entry cannot convey.
No meaningful divergence exists across the historical dictionaries that address this term — the definition was stable and consistent. The evolution is not in the meaning of the phrase but in the gradual displacement of the framework itself.
Jurisdictional Note
The party-and-party framework remains most alive in Commonwealth jurisdictions — England and Wales, Australia, Canada, and New Zealand — though even there it has been substantially replaced by "standard basis" and "indemnity basis" terminology following procedural reforms. In the United States, the phrase is effectively historical; American costs and fee-shifting doctrine developed along a separate track and does not employ this vocabulary in current practice.