A Hawaii Attorney May Request An Award Of Costs For A Prevailing Party

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We have previously written about the recovery of Attorney’s Fees in Hawaii.  Under the American Rule, parties to a lawsuit are responsible for paying their own expenses of litigation.  Certain statues, such as Hawaii Revised Statutes § 607-13, however, allow the prevailing party to recover his or her attorney’s fees from the non-prevailing party.

Hawaii law also provides for an award of costs.  Hawaii Rules of Civil Procedure Rule 54 states that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs.”  Thus, even if the parties are responsible for paying their own attorney’s fees, the prevailing party can still recover “costs” from the non-prevailing party.

Naturally, the next question is “what are costs?”  In Hawaii, costs awardable to a prevailing party are defined by Hawaii Revised Statutes § 607-9.  H.R.S. § 607-9 provides as follows:

Cost charges exclusive; disbursements.

No other costs of court shall be charged in any court in addition to those prescribed in this chapter in any suit, action, or other proceeding, except as otherwise provided by law.

All actual disbursements, including but not limited to, intrastate travel expenses for witnesses and counsel, expenses for deposition transcript originals and copies, and other incidental expenses, including copying costs, intrastate long distance telephone charges, and postage, sworn to by an attorney or a party, and deemed reasonable by the court, may be allowed in taxation of costs.  In determining whether and what costs should be taxed, the court may consider the equities of the situation.

H.R.S. § 607-9.

Hawaii courts have also opined on what costs are awardable to the prevailing party.  In fact, Hawaii courts have explicitly deemed some costs not recoverable.  Examples of costs that have been requested by litigants, but deemed not within the statute, are as follows:

  • Costs for messenger services.  Kikuchi v. Brown, 110 Hawaii 204, 212-13 (Haw. Ct. App. 2006);
  • Interstate long distance telephone charges.  Blair v. Ing, 96 Hawaii 327, 335 (Hawaii 2001);
  • Costs in obtaining a copy of a deposition taken by another party.  Nani Koolau Co. v. K&M Construction, Inc., 5 Haw.App. 137, 143-44 (Haw. App. 1984);
  • Out of state travel expenses of attorney.  Smothers v. Renander, 2 Haw.App. 400, 409 (Haw.App. 1981);
  • Travel expenses for parties.  Smothers v. Renander, 2 Haw. App. 400, 409 (Haw.App. 1981);
  • Unspecified postal services.  Smothers v. Renander, 2 Haw. App. 400, 409 (Haw.App. 1981);
  • Expert witness fees.  Buscher v. Boning, 114 Hawaii 202, 223 (Hawaii 2007);
  • Meals.  Wong v Takeuchi, 88 Hawaii 46, 54-55 (Hawaii 1998);
  • Depositions that were not admitted into evidence or used at trial.  Doe v. Roe, 5 Haw.App. 558, 571-72 (Haw.App. 1985); and
  • Trial transcripts.  Doe v. Roe, 5 Haw.App. 558, 571-72 (Haw.App. 1985).