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COSTS

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Originally appearing in Volume V07, Page 224 of the 1911 Encyclopedia Britannica.
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COSTS , a See also:

term used in See also:English See also:law to denote the expenses incurred (I) in employing a lawyer in his professional capacity for purposes other than litigation; (2) in instituting and carrying on litigation whether with or without the aid of a lawyer. See also:Solicitor and Client.—The See also:retainer of a solicitor implies a See also:contract to pay to him his proper charges and disbursements with respect to the See also:work done by him as a solicitor. In cases of See also:conveyancing his remuneration is now for the most See also:part regulated by scales ad valorem on the value of the See also:property dealt with (Solicitors' Remuneration See also:Order 1882), and clients are See also:free to make written agreements for the conduct of any class of non-litigious business, fixing the costs by a percentage on the value of the amount involved. So far as litigious business is concerned, the arrangement known as "no cure no pay" is objected to by the courts and the profession as leading to speculative actions, and stipulations as to a See also:share of the proceeds of a successful See also:action are champertous and illegal. An English solicitor's See also:bill See also:drawn in the old See also:form is a voluminous itemized narrative of every See also:act done by him in the cause or See also:matter with a See also:charge set against each entry and often against each See also:letter written. Before the solicitor can recover from his client the amount of his charges, he must deliver a signed bill of costs and wait a See also:month before suing. The High See also:Court has a threefold See also:jurisdiction to See also:deal with solicitors' costs:—(I) by virtue of its jurisdiction over them as its See also:officers; (2) statutory, under the Solicitors Act 1843 and other legislation; (3) See also:ordinary, to ascertain the reasonableness of charges made the subject of a claim. The client can, as a matter of course, get an order-for See also:taxation within a month of the delivery of the solicitor's bill, and either client or solicitor can get such an order as of course within twelve months of delivery. After expiry of that See also:time the court may order taxation if the See also:special circumstances See also:call for it, and even so See also:late as twelve months after actual See also:payment. Costs as between solicitor and client are taxed in the same See also:office as litigious costs, and objections to the decisions of the taxing officer, if properly made, can be taken for See also:review to a See also:judge of the High Court and to the Court of See also:Appeal. Litigious Costs.—The expenses of litigation fall in the first instance on the See also:person who undertakes the proceedings or retains and employs the lawyer. It is in accordance with the ordinary ideas of See also:justice that the expenses of the successful party to litigation should be defrayed by the unsuccessful party, a notion ex-pressed in the phrase that " costs follow the event." But there are many special circumstances which interfere to modify the application of this See also:rule.

The action, though successful, may be in its nature frivolous or vexatious, or it may have been brought in a higher court where a See also:

lower court would have been competent to deal with it. On the other See also:hand the See also:defendant, although he has escaped a See also:judgment against him, may by his conduct have rendered the action necessary or otherwise justifiable. In such cases the rule that costs should follow the event would be See also:felt to work an injustice, and exceptions to its operation have therefore been devised. In the law of See also:England the provisions as to litigious costs, though now simpler than of old, are still elaborate and complicated, and the costs themselves are on a higher See also:scale than is known in most other countries. Except as regards appeals to the See also:House of Lords and suits in See also:equity, the right to recover costs from the opposite party in litigation has always depended on See also:statute law or on rules made under statutory authority. " Costs are the creature of statute." The House of Lords has declared its competence to See also:grant costs on appeals independently of statute. In the judicial See also:committee of the privy See also:council the See also:power to See also:award, in its discretion, costs on appeals from the colonies or other matters referred to it, is given by § 15 of the Judicial Committee Act 1833; and the costs are taxed by the registrar of the council. Courts, of equity have always claimed a discretion independently of statute to give or refuse costs, but as a See also:general rule the See also:maxim of the See also:civil law, victus victori in expensis condemnatus est, was followed. The successful party was recognized to have a prima facie claim to costs, but the court might, on sufficient cause shown, not only deprive him of his costs, but even in some rare cases order him to pay the costs of his unsuccessful opponent. There was a class of cases in which the court generally gave costs to parties sustaining a certain See also:character, whatever might be the result of the suit (e.g. trustees, executors and mortgagees). In the courts of See also:common law, costs were not given either to See also:plaintiff or defendant, although the See also:damages given to a successful plaintiff might suffice to See also:cover not only the loss sustained by the wrong done, but also the expense he had been put to in taking proceedings. The defendant in a baseless or vexatious action could not even recover his costs thus indirectly, and the indirect costs given to a plaintiff under the name of damages were often inadequate and uncertain.

Costs were first given under the Statute of See also:

Gloucester (1277, 6 See also:Edward I. c. 1), which enacted that " the demandant shall recover damages in an See also:assize of novel disseisin and in writs of mort d'ancestor, cosinage, aiel and beziel, and further that the demandant may recover against the See also:tenant the costs of his See also:writ See also:purchased together with the damages above said. And this act shall hold in all cases when the party is to recover damages." The words " costs of his writ " were extended to mean all the legal costs in the suit. The statute gave costs, wherever damages were recovered, and no matter what the amount of the damages may be. Costs were first given to a defendant by the Statute of Marlbridge (1267) in a See also:case relatingto wardship in See also:chivalry (52 See also:Henry III. c. 6); but costs were not given generally to successful defendants until 1531(23 Henry VIII. c. 15), when it was enacted that " if in the actions therein mentioned the plaintiff after See also:appearance of the defendant be non-suited, or any See also:verdict happen to pass by lawful trial against the plaintiff, the defendant shall have judgment to recover his costs against the plaintiff, to be assessed and taxed at the discretion of the court, and shall have such See also:process and See also:execution for the recovery and paying his costs against the plaintiff, as the plaintiff should or might have had against the defendant, in case the judgment had been given for the plaintiff." In 16o6 by 4 See also:James I. c. 3, this " See also:good and profitable law " was extended to other actions not originally specified, although within the See also:mischief of the act, so that in any action wherein the plaintiff might have costs if judgment were given for him, the defendant if successful should have costs against the plaintiff. The policy of these enactments is expressed to be the discouragement of frivolous and unjust suits. This policy was carried out by other and later acts. The Limitations Act 1623, § 6, ordered that if the plaintiff in an action of See also:slander recovered less than 405. damages, the plaintiff should be allowed no more as costs than he got as damages. By 43 See also:Elizabeth c.

6 it was enacted that in any See also:

personal action not being for any See also:title or See also:interest in See also:land, nor concerning the See also:freehold or See also:inheritance of lands nor for See also:battery, where the damages did not amount to 40S. no more costs than damages could be allowed. By 3 & 4 Vict. C. 24 (See also:Lord See also:Denman's Act 1840), where the plaintiff in an action of See also:tort recovered less than 4os., he was not allowed costs unless the judge certified that the action was really brought to try a right besides the right to recover damages, or that the injury was wilful or malicious. All these enactments have been superseded by the Judicature Acts, but in the case of slander on See also:women the provisions of the act of 1623 were re-enacted in the Slander of Women Act 1891. Supreme Court.—The general rule now in force in the Supreme Court of Judicature is as follows:—" Subject to the provisions of the Judicature Acts and the rules of the court made thereunder, and to the See also:express See also:provision of any statute whether passed before or after the 14th of See also:August 189o, the costs of and incident to all proceedings in the Supreme Court, including the See also:administration of estates and See also:trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid. Provided (1) that nothing herein contained shall deprive an executor, See also:administrator, trustee or mortgagee who has not unreasonably carried on or resisted any proceedings of any right to costs out of a particular See also:estate or fund to which he would be entitled under the rules hitherto (i.e. before 1883) acted upon in the See also:chancery See also:division as successor of the court of chancery; (2) that where an action, cause, matter or issue is tried with a See also:jury, the costs shall follow the event unless the judge who tried the case or the court shall for good cause otherwise order." (R.S.C.,O. 65, r. I.) The rule above stated applies to civil proceedings on the See also:crown See also:side of the See also:king's See also:bench division, including See also:mandamus, See also:prohibition quo warranto, and certiorari (R. v. Woodhouse, 1906, 2 K.B. 502, 540); and to proceedings on the See also:revenue side of that division (O. 68, r.

1); but it does not apply to criminal proceedings in the High Court, which are regulated by the crown office rules of 1906, or by statutes dealing with particular breaches of the law, and as to See also:

procedure in taxing costs by 0. 65, r. 27, of the Rules of the Supreme Court. The rule is also subject to specific provision empowering the courts to limit the costs to be adjudged against the unsuccessful party in proceedings in the High Court, which could and should have been instituted in a See also:county court, e.g. actions of contract under £roo, or actions of tort in which less than 10 is recovered (County Courts Act 1888, §§ 65, 66, 116; County Courts Act 1903, § 3). For instance, in actions falling within the Public Authorities See also:Protection Act 1893 against public bodies or officials, the defendant, if successful, is entitled to recover costs as between solicitor and client unless a special order to the contrary is made See also:COSTUME accused person, if convicted, to pay the costs of his See also:prosecution (See also:Forfeiture Act 1870); and the like power exists as to persons convicted of offences indictable under the Criminal Law See also:Amendment Act 1885 (see § 18), and as to persons convicted on See also:indictment of See also:assault, corrupt practices at elections, offences against the Merchandise Marks Acts, or of defamatory See also:libel, if they have unsuccessfully pleaded jurisdiction. Provision is also made for the payment out of the See also:local See also:rate of the See also:district of the costs of prosecuting all felonies (except See also:treason-See also:felony) and a number of misdemeanours. A See also:list of these offences will be found in Archbold, Criminal See also:Pleading, 23rd ed., 246. The legislation on this subject authorizes the payment of the expenses of witnesses and of the prosecutor, both at a preliminary inquiry before justices and at the trial, and in the case of See also:summary conviction for any of the indictable offences in question. It has been extended so as to include the expenses of witnesses for the See also:defence in any indictable case if they have given See also:evidence at the preliminary inquiry, and the costs of the defence of poor prisoners in every indictable case in which the committing justices or the court of trial certify for legal aid (Poor Prisoners' Defence Act 1903). The costs are taxed by the proper officer of the court of assize or the clerk of the See also:peace in accordance with scales issued by the See also:Home Office in 1903 and 1go4. These scales do not See also:fix the fees to be allowed to counsel or solicitor for the prosecution. The costs, when taxed, are paid by the treasurer of the county or See also:borough on whom the order for payment is made.

Where a prosecution or indictment fails, the prosecutor cannot as a rule be made to pay the costs of the defence: except in cases within the Vexatious Indictments Act 1859 and its amendments (i.e. where he has, after a refusal by justices to commit for trial, insisted on continuing the prosecution) ; or where a defamatory libel is successfully justified, or where prosecutions in respect of merchandise marks or corrupt practices at elections have failed. (W. F.

End of Article: COSTS

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