The actual cash disbursements of the prevailing party for entry fee and surcharge should be assessed as costs. Witness fees and other costs may be allowed only by court order. The court should examine carefully all claims for discretionary costs.
Commentary
The prevailing party should receive his or her actual cash disbursements for filing and services fees. The court may tax other costs, such as witness fees or fees for experts, only by special order. Any specific statutory provisions regarding the costs of civil proceedings are applicable to such special situations. Additional costs not exceeding $100.00 may be assessed against any party who has set up a frivolous or misleading claim or answer, or otherwise sought to hamper a speedy and fair resolution of the dispute at hand. See Uniform Small Claims Rule 7(h).
Attorney’s fees should not be added to the judgment unless there is a written provision for such in the contract upon which the claim is based. See G.L. c.186, s. 20 with respect to contractual attorney’s fees in actions involving residential leases. Attorney’s fees may also be awarded where expressly authorized by statute, but the court should weigh such awards carefully in the light of the "obvious" legislative intent that small claims procedure should not require assistance of counsel. McLaughlin v Municipal Court of the Roxbury Dist., 308 Mass. 397, 405 (1941).