Request Costs to the Prevailing Party In New Jersey
In most cases, applications for costs are normally presented to the clerk after a final order or judgment has been entered.
Any party who has "prevailed" can request costs whether that party appeared as a plaintiff, a defendant, or in some other capacity.
Presumably, the clerk is ordinarily able to determine which party has "prevailed" by reviewing the order or judgment in question.
The rules do not provide any clear limitation as to the time within which applications for costs are to be submitted, or the time within which motions to review the clerk's action in taxing costs must be filed.
The Legislature has provided that costs may be allowed in virtually any proceeding, subject to the discretion of the court. N.J.S.A. 2A:15-59 provides as follows:
Except as otherwise provided by law, costs may be allowed or disallowed in the discretion of the court to any party in any action, motion, appeal or proceeding, whether or not he be successful therein; and where allowed, they may be taxed according to law. (Emphasis added)
The Supreme Court has dealt with the issue of taxed costs in more detail in R. 4:42-8 in the following language:
(a) Parties Entitled: Unless otherwise provided by law, these rules or court order, costs shall be allowed as of course to the prevailing party. the action of the clerk in taxing costs is reviewable by the court on motion.
(b) Defendants in Certain Actions. Costs shall be allowed against a defaulting defendant in a replevin action only if the defendant has refused to deliver the subject goods and chattels pursuant to written demand therefor made before commencement of the action. Costs shall not be allowed against a defendant in a quiet title action who defaults or files an action disclaiming any right in the subject property, and a defendant in such action who denies in the answer claiming or ever having claimed any right in the subject property may, by court order, be allowed costs.
(c) Proof of Costs. a party entitled to taxed costs shall file with the clerk of the court an affidavit stating that the disbursements taxable by law and therein set forth have been necessarily incurred and are reasonable in amount, and if incurred for the attendance of witnesses, shall state the number of days of actual attendance and the distance traveled, if mileage is charged.
(d) Effective Date. If a court allows costs to be taxed later than 6 months after entry of judgment or order, or when the judgment or order becomes the subject of review or further litigation later than 6 months after it has been finally disposed of, the judgment for costs shall not take effect before the entry in the civil docket. (Emphasis added)
R. 4:42-8(a) provides that costs are to be allowed as of course to the prevailing party. R.4:42-8(c) contemplates that applications for costs are to be submitted to the clerk in affidavit form.
Under R. 4:42-8(a), the clerk's action in taxing costs is reviewable by the court on motion.