Rule 92(e) Clarified: No Waiver of Statutory Costs When Not Presented to Arbitrator

Introduction

In Jordan v. Macedo, 2025 IL 130687, the Supreme Court of Illinois resolved a recurrent procedural problem in cases resolved through mandatory arbitration: whether a prevailing plaintiff who did not ask the arbitrator for statutory “costs” may seek those costs later from the circuit court after judgment is entered on the arbitration award. The Court held that Illinois Supreme Court Rule 92(e) controls and provides a clear answer—there is no waiver. If the arbitration panel does not address costs for any reason, the prevailing party may recover those costs upon entry of judgment. The Court also left intact the appellate court’s determination that prejudgment interest may be awarded by the circuit court after entry of judgment on an arbitration award.

The case arose from a motor-vehicle collision between plaintiff-appellant Irma Jordan and defendant-appellee Esmerelda Macedo, proceeded in Cook County’s mandatory arbitration program, and resulted in an arbitral award of $13,070 for Jordan. Neither party rejected the award, judgment was entered, and Jordan moved for statutory costs and prejudgment interest. The circuit court denied the motion; the appellate court affirmed as to costs but reversed as to prejudgment interest. The Supreme Court reversed on costs and affirmed on prejudgment interest, remanding for further proceedings.

Summary of the Opinion

The Supreme Court (Justice Cunningham writing for a unanimous Court) held:

Under the plain language of Illinois Supreme Court Rule 92(e), parties “shall” submit costs to the arbitration panel, but if the panel does not address costs—whether because no request was made or for any other reason—that omission does not waive the prevailing party’s right to recover statutory costs upon entry of judgment. Both the arbitration proceeding and the trial court are proper forums to seek statutory costs under 735 ILCS 5/5-108.
The Court rejected defendant’s argument that Rule 92(e) preserves post-judgment requests only where the party first sought costs from the arbitrator and the arbitrator failed to address them. The Court refused to read such a condition into the Rule.
Cruz v. Northwestern Chrysler Plymouth Sales, Inc., 179 Ill. 2d 271 (1997), which forbids post-judgment attorney-fee petitions after arbitration, does not control statutory costs; attorney fees are materially different (potentially substantial, discretionary, and case-specific), whereas statutory costs are limited and ministerial.
Local rules cannot contradict or narrow Supreme Court rules. Cook County’s silence on a counterpart to Rule 92(e) does not impose a waiver regime; Supreme Court Rule 92(e) governs.
Although prejudgment interest was not the issue accepted for review, the Court affirmed the appellate court’s reversal of the trial court’s denial of prejudgment interest, leaving that result in place.

The Court therefore affirmed in part and reversed in part the appellate judgment, reversed the circuit court’s denial of the plaintiff’s motion, and remanded.

Factual and Procedural Background

Jordan sued Macedo in October 2021 after a vehicle collision, seeking recovery including more than $14,000 in medical expenses. The case was referred to Cook County’s mandatory arbitration program. The arbitrator awarded Jordan $13,070. Neither party rejected the award within the 14-day period (Cook County Cir. Ct. R. 25.11). The circuit court entered judgment on November 28, 2022.

That same day, Jordan moved to tax costs and award prejudgment interest, requesting $524.55 in prejudgment interest and $685.28 in statutory costs (filing fees, alias summons fee, sheriff’s summons fee). The circuit court denied the motion, reasoning the arbitration award “contained the full amount” to be reduced to judgment absent rejection.

On appeal, the appellate court held Jordan was not entitled to post-judgment costs because she had not asked the arbitrator for them (relying on Cruz), but was entitled to prejudgment interest, which it deemed a ministerial function of the trial court not constituting additional “damages.” Justice Mikva concurred in part and dissented in part, agreeing on prejudgment interest but arguing statutory costs should likewise be available post-judgment. The Supreme Court granted leave to appeal.

Legal Analysis

Precedents and Authorities Cited

Illinois Supreme Court Rule 92(e) (eff. Jan. 1, 2017). “Costs shall be determined by the arbitration panel pursuant to law. The failure of the arbitration panel to address costs shall not constitute a waiver of a party’s right to recover costs upon entry of judgment.” This rule is the centerpiece of the Court’s holding: its text both encourages arbitrators to decide costs and preserves a prevailing party’s right to seek costs from the court if costs were not addressed in arbitration.
735 ILCS 5/5-108 (statutory costs). Provides that a prevailing plaintiff in “any action for damages personal to the plaintiff” shall recover costs against the defendant. Section 5-108 applies here because Jordan filed and recovered.
Cruz v. Northwestern Chrysler Plymouth Sales, Inc., 179 Ill. 2d 271 (1997). Cruz held that after an un-rejected arbitration award is reduced to judgment, the circuit court lacks authority to add attorney fees. The Supreme Court distinguished Cruz on two grounds: (1) Cruz dealt with attorney fees, not statutory costs; (2) Rule 92(e) was adopted after Cruz and specifically addresses costs, not fees. The concerns animating Cruz—substantial, discretionary fee awards requiring knowledge of case complexity—do not apply to limited, ministerial costs.
Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 22. Courts will not depart from the plain language of a Supreme Court rule by reading into it exceptions or conditions. Applied to reject defendant’s proposed limitation that would condition Rule 92(e)’s no-waiver clause on first seeking costs at arbitration.
Illinois Supreme Court Rule 86(c) (eff. Jan. 1, 1994). Circuits may adopt local arbitration rules that are consistent with Supreme Court rules.
Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 357 (2007); Jones v. State Farm Mutual Automobile Insurance Co., 2018 IL App (1st) 170710, ¶¶ 12, 22–23. Local rules cannot conflict with Supreme Court rules; Supreme Court rules prevail. Used to reject the appellate court’s inference that Cook County’s failure to mirror Rule 92(e) signaled a waiver requirement.
Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295, 299 (2003). Questions about a trial court’s authority are reviewed de novo.
Cook County Local Rules 25.10 and 25.11. Describe the arbitrator’s issuance of an Award Form and the 14-day acceptance/rejection procedure.

The Court’s Legal Reasoning

The Supreme Court’s analysis is anchored in the text of Rule 92(e). The Rule contains two commands: first, arbitrators are to determine costs; second, if they do not address costs, that failure does not waive a party’s right to recover costs at judgment. The Court emphasized the second clause’s breadth—“for any reason”—and refused to graft an extra condition that a party must have requested costs during arbitration to preserve post-judgment recovery. To do so would contradict the Rule’s plain language and violate the interpretive principle against inserting unstated exceptions or limitations.

The Court also rejected the appellate court’s reliance on Cook County’s local rules to create a waiver regime. Supreme Court Rule 86(c) permits circuits to adopt local arbitration rules, but only if consistent with statewide rules. Silence in the Cook County rules does not—and cannot—narrow Rule 92(e). Thus, Rule 92(e) is the controlling authority throughout Illinois arbitration programs, including Cook County.

The Court distinguished its earlier decision in Cruz. There, the Court foreclosed post-judgment petitions for attorney fees because fees are not merely ancillary; they can be significant, are often contested, and require knowledge of the litigation’s complexity—knowledge the circuit court would not have when simply entering an arbitration award as judgment. By contrast, Section 5-108 “costs” are mandatory, limited, and ministerial (e.g., filing and service fees), and awarding them post-judgment does not meaningfully modify the arbitrator’s determination of liability and damages. The Court was careful to confine its analysis to Section 5-108 costs and not to reopen the question of post-judgment attorney fees.

Finally, while the Court did not accept the prejudgment-interest question for plenary review, it affirmed the appellate court’s reversal of the trial court’s denial of prejudgment interest. The appellate court had characterized prejudgment interest as a ministerial, non-damages add-on that the trial court may award; the Supreme Court did not disturb that result.

Impact and Practical Implications

This decision is a statewide clarification with immediate consequences for practice in mandatory arbitration:

No-waiver rule for costs applies across Illinois arbitration programs. If the arbitrator does not address costs—because no one asked, because the panel overlooked it, or for any other reason—the prevailing party may seek costs in the circuit court after judgment on the award. Counsel in all circuits should treat Rule 92(e) as the operative authority on costs.
Best practice remains to request costs at arbitration. The Court reiterates that costs “can and should” be sought during arbitration. Doing so informs the losing party’s accept/reject calculus and may streamline post-award proceedings. But failure to do so no longer risks waiver.
Clear distinction between costs and attorney fees remains. Cruz still bars post-judgment attorney-fee petitions after acceptance of an arbitration award. Jordan v. Macedo explicitly limits its holding to statutory costs under Section 5-108 and does not disturb Cruz’s rule on fees.
Local rules cannot narrow statewide rights under Rule 92(e). Circuits that have not adopted a local analogue to Rule 92(e) cannot rely on that silence to deny costs post-judgment; Supreme Court rules govern.
Prejudgment interest after arbitration judgments remains available. Although not analyzed at length here, the Supreme Court left in place the appellate ruling that prejudgment interest can be awarded by the trial court after entry of judgment on an arbitration award. Practitioners should continue to preserve and present such requests at judgment.

At a systems level, the decision reduces gamesmanship around whether to request costs at arbitration and avoids penalizing prevailing parties for omissions that do not implicate the merits. It also preserves arbitrators’ primary role while recognizing the trial court’s limited but important ministerial role at judgment.

Complex Concepts Simplified

Mandatory arbitration (Illinois civil cases): Certain civil cases are referred to an arbitration panel that hears evidence and issues an award. Parties have a short window (14 days in Cook County) to accept or reject the award. If neither rejects, the award is reduced to judgment by the circuit court, generally without revisiting the merits.
Statutory “costs” under 735 ILCS 5/5-108: Costs are ancillary, statutorily authorized litigation expenses—commonly filing fees, service/sheriff’s fees, and certain subpoena/witness fees—that a prevailing plaintiff automatically recovers. They are distinct from “damages” (compensation for injury) and from “attorney fees” (compensation for legal services), which require separate authority and may be discretionary.
Ministerial vs. substantive actions by the court: A ministerial action is mechanical and does not alter the substantive rights determined by the arbitrator. Taxing costs and awarding statutory prejudgment interest typically fall into this category; adding discretionary attorney fees generally does not.
Rule 92(e)’s no-waiver clause: Even though arbitrators are to determine costs, if they do not address costs “for any reason,” the prevailing party may ask the circuit court to tax costs when entering judgment on the award. You do not forfeit costs by failing to request them in arbitration.
Local vs. Supreme Court rules: Circuit courts can have local arbitration rules, but they cannot conflict with or constrain Supreme Court rules. When there is silence or conflict, the Supreme Court rule controls.

Key Takeaways

A prevailing party in Illinois mandatory arbitration does not waive the right to statutory costs under Section 5-108 by failing to request them before the arbitrator. The party may move to tax costs in the circuit court upon entry of judgment on the arbitration award.
Rule 92(e) controls statewide and cannot be narrowed by local court rules or practices.
Cruz remains good law as to attorney fees; Jordan v. Macedo does not authorize post-judgment attorney-fee petitions following un-rejected arbitration awards.
Although not the principal issue on review, prejudgment interest may be awarded by the circuit court after entry of judgment on the arbitration award; the Supreme Court affirmed that disposition here.
Practitioners should continue to present costs at arbitration when feasible, but they now have clear assurance that costs may be sought at judgment if not addressed by the panel.

Practice Notes and Cautions

What counts as “costs”? Section 5-108 costs are limited. Typical items include filing fees and service/sheriff’s fees (like those Jordan sought). Not all litigation expenses (e.g., most copying, travel, expert fees) are taxable as “costs” unless authorized by statute or rule.
If the arbitrator addressed and denied costs: Rule 92(e) addresses only the panel’s “failure to address” costs. This decision does not resolve whether a court may revisit a panel’s express denial of costs. Parties should consider the accept/reject decision carefully if the panel affirmatively rules on costs.
Document your costs. Whether you seek costs at arbitration or at judgment, maintain receipts and a clear schedule of taxable items to facilitate the ministerial calculation.
Prejudgment interest timing. While the Supreme Court did not analyze the issue, the affirmed result supports requesting prejudgment interest at judgment on an arbitration award. Ensure compliance with any applicable prejudgment interest statute and accrual rules.

Conclusion

Jordan v. Macedo establishes an important, practitioner-friendly rule: under Supreme Court Rule 92(e), a prevailing party in a mandatory arbitration proceeding does not waive statutory costs by failing to request them from the arbitrator; those costs may be sought when the circuit court enters judgment on the award. The decision harmonizes the arbitration regime with the longstanding mandate of Section 5-108, preserves the arbitrator’s primary role while acknowledging the court’s ministerial authority, and clarifies that local practice cannot narrow statewide rights under Supreme Court rules. Distinguishing Cruz, the Court confines its holding to costs, leaving the bar’s settled understanding about attorney fees intact. And by affirming the appellate court on prejudgment interest, the Court signals continuity for trial-court authority to add ministerial, non-damages amounts at judgment. The upshot is clearer, more predictable post-arbitration procedure and a reaffirmation that technical omissions in arbitration will not strip prevailing parties of statutory entitlements.