Cost of litigation

2022 CLC 1064 ISLAMABAD Judicial Precedent

S.35 [as amended by Costs of Litigation Act (XVII of 2017)]Cost of litigationAttorney's feeScope

Court should not sit in judgment over attorney fee when such fee as paid by a party falls within the zone of reasonability and is in contemplation of litigating parties in view of the nature of litigation

Court has to allow partial indemnity of attorney's fee if actual fee were (i) found to be unreasonable and disproportionate to the work involved and (ii) result in creating a possible barrier for public-at-large to accessing justice system.

2022 CLC 1064 ISLAMABAD Judicial Precedent

S.35 [as amended by Costs of Litigation Act (XVII of 2017)]Cost of litigationEntitlement

Right to recover actual cost of litigation in a proceeding before Court belongs to party and not to party's counsel.

2022 CLC 1064 ISLAMABAD Judicial Precedent

S.35 [as amended by Costs of Litigation Act (XVII of 2017)]Cost of litigationStatement of expenses

Cost of litigation statement has to be filed on proposed basis upon commencement of proceedings and supplemented by final statement at culmination of proceedings, reflecting actual cost incurred together with receipts and proof of payment of fee to counsel

Parties are required to file their cost of litigation statements as mandated by S.35(1)(i), C.P.C. but non-filing of such statement cannot be a ground for not awarding cost of litigation as reasonably and objectively determined by Court to be payable to winning party.

2022 CLC 1064 ISLAMABAD Judicial Precedent

S.35 [as amended by Costs of Litigation Act (XVII of 2017)]Cost of litigationDetermining factorsAppellant was aggrieved of awarding cost during execution proceedingsPlea raised by appellant was that Executing Court did not consider factors to award costsValidity

While granting costs under S.35, C.P.C., Court needed to determine that actual costs of litigation claimed were reasonable and cost award was fair to successful party as well as the losing parting

In determining quantum of cost of litigation award, principle of proportionality had to remain a guiding consideration

Court must consider whether costs incurred were justified in circumstances of the case

Costs claimed and awarded must be fair and reasonable taking into account complexity of matter, time that ought to have been expended by reasonable and conscientious attorney (including human resources of a law firm that were required to be employed in relation to the matter), experience of attorney and reasonable fee that litigant would pay to such attorney without knowing whether or not such fee would be recoverable, given that the outcome in litigation could never be predicted with absolute certainty

Executing Court did not determine actual costs of litigation incurred by appellant in execution proceedings pending before it

Costs awarded by Executing Court was neither actual cost incurred as claimed by appellant nor was supported by any reasoning as to how such amount was calculated or what part of cost claim was disallowed by the Court and why

High Court set aside order of Executing Court to the extent of award of costs to appellant and remanded the matter to determine actual costs of litigation incurred by appellant in relation to execution proceedings pending before Executing Court and not costs incurred in relation to proceedings before another Court such as High Court and Supreme Court

Appeal was allowed accordingly.

2022 CLC 1064 ISLAMABAD Judicial Precedent

S.35 [as amended by Costs of Litigation Act (XVII of 2017)]Cost of litigationStage of awarding

Relevant Court before which legal proceedings continue at each of the tiers was to award litigation costs at culmination of such proceedings

Amendments under Cost of Litigation Act, 2017, contemplate each court awarding costs in relation to proceedings before it as opposed to litigation costs being cumulated and awarded by the highest adjudicatory forum

Costs provided for under S.35, C.P.C. are limited to costs in relation to proceedings before the Court awarding such costs.

2014 PLD 71 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 47 & 35Specific Relief Act (I of 1877), S. 42Suit for declarationExecution petitionCost of litigationScopeExecution petition was filed wherein objection petitions were submitted which were dismissed concurrentlyValidityJudgment and decree passed in favour of plaintiffs had attained finality

Execution petition moved by the plaintiffs was accepted and defendant did not challenge the said order passed by the Executing Court

No provision was available in Civil Procedure Code to file objections to challenge the judgment and decree which had been acted upon through execution petition

No proceeding was pending before the Executing Court when second objection petition was submitted by the defendant

Objections filed for second time were dismissed by the Executing Court but such order was not assailed and same had attained finality

Objections filed for third time were submitted after lapse of more than five months

Executing Court had rightly declined to entertain the objections filed by the defendant

Defendant had failed to point out any illegality, irregularity or jurisdictional defect in the impugned order passed by the courts below

Defendant had fraudulently mutated the property of plaintiffs in his favour

Such act of defendant compelled the plaintiffs to approach the court in the year 1991 and since then they had been dragged in litigation by the defendant which cost them a huge amount

Court had discretion to grant the actual cost of litigation to the successful party by the unsuccessful party

Plaintiffs were in litigation in the present case for a long time in different courts

Conduct of defendant compelled the plaintiffs to start second round of litigation by filing execution petition

Plaintiffs had spent a huge amount upon the litigation including travelling and lodging expenses who were entitled for actual cost of litigation but same had not been granted by the courts below

Plaintiffs had not only suffered mental and physical agony due to litigation but had also suffered huge financial loss/expenses not only during the trial of suit but also after obtaining a decree

Defendant was wilfully avoiding implementation of decree and had not only caused the actual cost of litigation but was also responsible for the damages accrued to the plaintiffs

Court had power to determine as to by whom or out of which property and to what extent such costs were to be paid and to give necessary directions for the said purpose

Court could pass an order as to costs even it might not have jurisdiction to entertain the suit

Defendant should pay an amount of Rs.175,000/- to the plaintiffs as actual cost of litigation and an amount of Rs.25,000/- as a compensation for frivolous and false litigation

Revision was dismissed in circumstances.