Costs

As such the petitioners were burdened with special costs of rupees Rs.10,00,000/- to be recovered as arrears of land revenue and were to the deposited with Akhuwat Foundation

Civil revision, being devoid of any merits, was dismissed with costs throughout.

Purpose and benefits of imposing costs on litigants stated.

Purpose and benefits of imposing costs on litigants stated.

Claim or defence is frivolous (a) if it is taken primarily for the purpose of harassing or maliciously injuring a person, or (b) if the lawyer is unable to make a good faith and rational argument on the merits of the action, or (c) if the lawyer is unable to support the action taken by a good faith and rational argument for an extension, modification or reversal of existing law.

Provision of costs is intended to achieve the following goals; (a) it should act as a deterrent to vexatious, frivolous and speculative litigations or defences

Spectre of being made liable to pay actual costs should be such as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence; (b) costs should ensure that the provisions of C.P.C., the Qanun-e-Shahadat, 1984 or other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court; (c) costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation, which necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs; and (d) the provision of costs should be an incentive for each litigant to adopt alternate dispute resolution (ADR) processes and arrive at a settlement before the trial commences in most of the cases.

Object of granting such costs may be two-fold, one, to compensate the aggrieved party, who, in successful assertion/defence of his right, has been put to unnecessary litigation and harassment; the other object is to penalize a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with highhandedness, arbitrarily, mala fide or ulterior motive.

Costs is the sum of money which the court orders one party to pay another party in an action as compensation for the expense of litigation incurred

Costs are awarded as compensation (i.e. reimbursement); there is, unlike damages, no restitutio in integrum, there is no concept in costs as there exists in damages, that the injured person should be placed, in so far as money can do so, in the same position as he occupied before the injury was suffered.

Actual costs reimburse the expenses incurred by the successful litigant in asserting his rights/claim but the court's discretion in awarding them is subject to certain limitations

Section 35 aims at reimbursement of reasonable litigation expenses to the successful party, the costs awarded under said section should be realistic

In contrast, the compensatory costs envisaged by S. 35-A are a compensation for false and vexatious claims and defences and are in addition to the actual costs

In awarding them the court does not take into account the actual injury to the person or property of party which can be claimed in a separate suit for damages.

Costs are not awarded by way of penalty or punishment against the unsuccessful party nor are they to be made a source of profit for the successful party

Costs are also not awarded by way of compensation, but by its very nature, actual costs are awarded to reimburse a successful party for the expenses incurred by him

Even under S. 35-A costs are compensatory and are not awarded as penalty against an unsuccessful party which shows that though the costs awarded under S. 35-A can be taken into account when awarding 'damages', they are not even by statutory dispensation, the same as the 'damages'

Conditions for application of S. 35-A are different and much less than the elements set out earlier for an action for malicious prosecution

Actual costs of the suit under S. 35 are at a much lower level when considered in such behalf

Combined reading of subsection (4) of S. 35-A and subsection (2) of S. 95 which deal with the effect of the orders under these provisions on actions for 'damages' are clear indication of the legislative intent; that unless a case is fully covered by S. 95(2), the award of costs under Ss. 35 & 35-A, instead of barring a suit for damages, supports the right for such an action.

Petitioner took objection regarding the purchase of rented premises through an agreement to sell and the institution of suit for specific performance for such an agreement to sell which had already been spurned by High Court in an earlier petition

Petitioner, by re-agitating that very objection in another objection petition to the execution proceedings, committed an abuse of the process of the court and unnecessarily protracted the proceedings

Section 35(1)(i), C.P.C. provided that a party to any proceedings shall, before the announcement of the final order, judgment and decree, file in the prescribed form, details of actual costs of litigation, including but not limited to court fee, stamp fee, fee paid to counsel and all other ancillary and other incidental expenses thereto

Section 35(1)(iii), C.P.C. provided that costs other than those mentioned in S. 35(1)(i), C.P.C. shall be in the discretion of the court

Petitioner, in circumstances, was burdened with costs for protracting the execution proceedings by taking objections which had been decided in the earlier round of litigation.

Although the criteria for an award of costs against a lawyer personally were comparable to those that applied to contempt of court , the consequences were by no means identical

Contempt of court was strictly a matter of law and could result in harsh sanctions, including imprisonment

Additionally, the rules of evidence that applied in a contempt proceeding were more exacting than those that applied to an award of costs against a lawyer personally, as contempt of court must be proved beyond a reasonable doubt

Due to the special status of lawyers as officers of the court, a court may therefore opt in a given situation to award costs against a lawyer personally rather than citing him or her for contempt.

Awarding of costs against lawyers personally flowed from the right and duty of the courts to supervise the conduct of the lawyers who appeared before them and to note, and sometimes penalize, any conduct of such a nature as to frustrate or interfere with the administration of justice

Lawyers, as officers of the court, had a duty to respect the court's authority, and if they failed to act in a manner consistent with their status, the court may be required to deal with them by punishing their misconduct

Such power of the courts to award costs against a lawyer personally was not limited to civil proceedings, but could also be exercised in criminal cases, which meant that it may be exercised against defence lawyers

Such power applied in parallel with the power of the courts to punish by way of convictions for contempt of court and that of law societies to sanction unethical conduct by their members.

Award of costs against a lawyer personally could be justified only on an exceptional basis where the lawyer's acts had seriously undermined the authority of the courts or seriously interfered with the administration of justice

Such high threshold was met where a court had before it an unfounded, frivolous, dilatory or vexatious proceeding that denoted a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that was deliberate

Two important guideposts applied to the exercise of such discretion; the first guidepost related to the specific context of criminal proceedings, in which the courts must show a certain flexibility toward the actions of defence lawyers, whose role was not comparable in every respect to that of a lawyer in a civil case

If costs were awarded against a lawyer personally, the purpose must not be to discourage the lawyer from defending his or her client's rights and interests, and in particular the client's right to make full answer and defence

Considerations to be taken into account in assessing the conduct of defence lawyers, therefore, could be different from those that applied in the case of lawyers in civil proceedings

Second guidepost required a court to confine itself to the facts of the case before it and to refrain from indirectly putting the lawyer's disciplinary record, or indeed his or her career, on trial

To consider facts external to the case before the court could be justified only for the limited purpose of determining, first, the intention behind the lawyer's actions and whether he or she was acting in bad faith, and, second, whether the lawyer knew, on bringing the impugned proceeding, that the courts did not approve of such proceedings and that it was unfounded

In such regard, certain evidence that was external to the case before the court may sometimes be considered, because it was of high probative value and had a strong similarity to the alleged facts, in order to establish, for example, wilful intent and knowledge on the lawyer's part, however, it must be limited to the specific issue before the court, that is, the lawyer's conduct; it may not serve more broadly as proof of a general propensity or bad character.

On the morning of a scheduled hearing in the court on a motion for disclosure of evidence in his clients' cases, before it even began, respondent presented a series of motions for writs of prohibition in which he challenged the jurisdiction of the judge who was to preside over the hearing, alleging bias on the judge's part

Before the motions were served, the parties learnt that another judge would be presiding instead

Motions were therefore put aside, and the hearing on the motion for disclosure of evidence began

During the hearing, respondent objected to the testimony of an expert witness called by the prosecution on the ground that he had not received the required notice

Presiding judge decided to authorize the examination in chief of the expert after the lunch break

During the break, respondent drew up a new series of motions for writs of prohibition, this time challenging that judge's jurisdiction and alleging, once again, bias on the judge's part

After the break, respondent informed the presiding judge of the writs of prohibition and the hearing was adjourned, as the service of such motions suspended proceedings until the superior court had ruled on them

Superior Court dismissed the motions and, at the prosecution's request, awarded costs against the respondent (counsel) personally

Legality

[Per Gascon, J; [Majority view] Circumstances of the present case were exceptional and justified an award of costs against the respondent personally

Respondent's conduct was particularly reprehensible, and the purpose of his conduct was unrelated to the motions he brought

Respondent was motivated by a desire to have the hearing postponed rather than by a sincere belief that the judges targeted by his motions were hostile

Moreover it was quite odd, if not unprecedented, for a lawyer to file, on the same day and in the same cases, two series of motions for writs of prohibition against two different judges on the same ground of bias

Respondent, thus, used the extraordinary remedies for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner

In such circumstances it was reasonable for the court to conclude that the respondent had acted in bad faith and in a way that amounted to abuse of process, thereby seriously interfering with the administration of justice

Procedural safeguards were also observed in the present case

Prosecution sent the respondent two prior notices of its intention to seek an award of costs against him personally

Respondent had more than three months to prepare

Prosecution's role was limited to notifying the respondent of its intention to seek an award of costs against him personally and presenting the relevant evidence to the judge

Respondent raised no objection to the process or to the evidence adduced on the issue of costs, nor did he insist on being represented by counsel or ask that the issue of costs be dealt with separately from the merits of the motions

Award of costs on the respondent personally was, thus, justified

[Per Abella and Côté JJ; [Minority view]: Personal costs orders were of an exceptional nature

In the criminal context, such orders could have a chilling effect on criminal defence counsel's ability to properly defend their client, therefore, they should only be issued in the most exceptional of circumstances and the prosecution should be very hesitant about pursuing them

In the present case, respondent's behaviour did not warrant the exceptional remedy of a personal costs order

Respondent's conduct was not unique and he was being punished as a warning to other lawyers engaged in similar tactics

Desire to make an example of respondent's behaviour did not justify straying from the legal requirement that his conduct be rare and exceptional before costs were ordered personally against him

Moreover, respondent's motions for writs of prohibition were not unfounded to a sufficient degree to attract a personal costs order

Prosecution had not provided respondent with the notice required for an expert witness testimony, as a result, he was entitled to an adjournment under the relevant Criminal Code

Judge presiding in the court only granted the respondent a brief adjournment over the lunch break and mistakenly said that the respondent had already cross-examined the prosecution's expert in other matters

In the circumstances, respondent's filing of motions for writs of prohibition for the purpose of suspending the proceedings could easily be seen as an error of judgment, but hardly one justifying a personal costs order]

Appeal was allowed accordingly.

Court cannot award costs against a lawyer personally without following a certain process and observing certain procedural safeguards

Lawyer upon whom such a sanction may be imposed should be given prior notice of the allegations against him or her and the possible consequences

Notice should contain sufficient information about the alleged facts and the nature of the evidence in support of those facts, and should be sent far enough in advance to enable the lawyer to prepare adequately

Lawyer should have an opportunity to make separate submissions on costs and to adduce any relevant evidence in such regard

Applicable standard of proof was the balance of probabilities

In criminal proceedings, the prosecution's role on such issue must be limited to objectively presenting the evidence and the relevant arguments, and it was the court that was responsible for determining whether a sanction should be imposed, and only it had the power to impose one, in its role as guardian of the integrity of the administration of justice

Prosecution must confine itself to its role as prosecutor of the accused; it must not also become the prosecutor of the defence lawyer.

University filed an application before the Court of first instance and obtained an interdict against several protestors, including the applicants

In addition to granting the interdict, the Court of first instance ordered the applicants to pay university's costs jointly and severally, including the costs of two counsel

Question as to whether the Court of first instance correctly exercised costs discretion

Held, that where the discretion exercised by court below was one in the true sense, contemplating that the court choose from a range of options, an appellate court would require a good reason to interfere with the exercise of such discretion

Cautious approach was, therefore, required

Appellate Court may have a different view on whether the costs award was just and equitable, however, it should be careful not to substitute its own view for that of the court below because it may, in certain circumstances be inappropriate to interfere with the exercise of discretion by court below

Primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice

"Nature of the issues" rather than the "characterisation of the parties" was the starting point

Costs should not be determined on whether the parties were financially well-endowed or indigent

Applicants in the present case were engaged in a protest because they could not, among other things, afford the university fees

At the heart of the protest was a seething sense of injustice that prevailed among university students and the country at large at the failure of the state and universities to provide free and quality education

Said issue had the effect on the protesters' Constitutional 'right to education', which concerned not only the applicants, but also other students generally in other universities in the country

Whilst the applicants' conduct went beyond the boundary of a peaceful protest, the constitutional context of the issue which lead to the protests had to be taken into account

Issue raised by the protestors, including the applicants, was of genuine constitutional import

Although the applicants were unsuccessful in the courts below, the courts erred in considering the chilling effect the costs order would have on the litigants, in the context of constitutional justice

Applicants were neither frivolous nor vexatious in opposing the University's application for grant of interdict

Court of first instance erred in not applying the general principle on costs in relation to constitutional litigation and failed to realize that present case did not fall within any of the exceptions to the general principle

Court of first instance did not exercise its discretion judicially in imposing costs on the applicants, therefore the Constitutional Court (present court) was entitled to interfere with the costs award

On a consideration of all relevant circumstances, justice and fairness would best be served if each of the parties were ordered to pay their own costs not only in the Appellate court, but also in the Court of first instance

Constitutional Court directed that each party was to pay its own costs, in the Court of first instance, the Appellate court and the Constitutional Court

Application for leave to appeal was disposed of accordingly.

General rule in constitutional litigation was that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs

In the first place said rule diminished the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights

Constitutional litigation frequently went through many courts and the costs involved could be high

Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences

Similarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they would be deprived of their costs because of some inadvertent procedural or technical lapse

Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but on the rights of all those in similar situations

Thirdly, it was the state that bore primary responsibility for ensuring that both the law and state conduct were consistent with the Constitution

Where there was a genuine, non-frivolous challenge to the constitutionality of a law or of state conduct, it was appropriate that the state should bear the costs if the challenge was good, but if it was not, then the losing non-state litigant should be shielded from the costs consequences of failure

In this way responsibility for ensuring that the law and state conduct was constitutional was placed at the correct door

General rule on costs in constitutional litigation, however was not inflexible and there may be circumstances that justified departure from the general rule such as where the litigation was frivolous or vexatious, or the conduct on the part of the litigant deserved censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs

Ultimate goal was to do that which was just having regard to the facts and circumstances of the case.

Award of costs was a discretionary matter, therefore, such discretion must be exercised judicially, having regard to all the relevant circumstances.

Filing of revision petition after receiving costs, was an act not permissible under the law and jurisdiction thus exercised would become nullity in law.

Costs is the only panacea which heals every sore in litigation.

Failing applicant, held, not entitled to make any claim for costs against successful respondent in circumstances.

Arts. 4, 50 & 51-Costs-Charges for land allotted-Determination of-Actual delivery of area allotted to respondent-Society delayed due to shifting positions taken by petitioner from time to time and such positions not tenable

Price and other charges payable by Society for land, held, to be governed by rates prevailing when allotment orders passed and not as prevailing on date of actual delivery of possession

Inconsistent with equity, justice, and good conscience to saddle respondent with additional burden, for commissions and omissions of petitioner.

Costs Co-owner-Improvements-Co-owner making improvements on joint property-Not entitled to re-imbursement of costs thereof unless such improvements made with consent, express or Implied, of co-owner against whom amount claimed or expenditure proved imperative.

Costs-Not ordinarily allowed by Federal Court in criminal matters.

(d) Costs-Authority assuming jurisdiction illegally and driving party affected to litigation-Authority, in circumstances, directed to pay costs of litigation personally.

S. 35-Costs-Lower appellate Court modifying decree of trial Court-Costs awarded by trial Court-Ordered to be modified proportionately.

O. XXXIII, r. 10 and O. XLIV Costs-Court has discretion to mould its decree according to dictates of justice-Entire Court fee, in special circumstances of case, directed to be borne by defendant-respondent.

Costs S. 35-Costs-Courts below misdirecting themselves in not considering vital questions, but arriving at just conclusions-Party adversely affected, held, entitled to ask Court not to award costs against it.

S. 145 read with S. 148-Proceedings under S. 145 - Costs - Magistrate, after applying mind to materials placed before him coming to conclusion that party was entitled to costs-Cannot refuse awarding reasonable costs.

Costs Costs-Adjournment granted on payment of costs-No review lies against order of costs.

Defendant entitled to costs even if plaintiff had failed on plea of limitation.

Costs -Difficult questions of law involved in case-Parties should be left to bear their own costs-Civil Procedure Code (V of 1908), S. 35.

Costs -Allowed on amendment of plaint-Costs accepted by defendant-Acceptance does not waive defendant's right to object in time to extension of time under O. VI, r. 18, Civil Procedure Code (IJ of 1908).

Appeal before Privy Council in criminal matter As a rule not allowed.

Writ: petition-Government stopping impugned inquiry, before High Court issued interim stay-Petitioner, held, not disentitled to costs.

Costs Costs-Court-fee not payable even if appeal contains special ground against amount awarded.

Criminal appeal-Whether Privy Council would allow.

Costs nevertheless not allowed because criminal proceedings were successful in two Courts and had some support from decisions of Supreme Court.