Report No. 27
8. Twin problem of costs and delay.-Justice should be cheap and expeditious. That is what the common man wants. Lord Evershed has observed-
"Expedition and cost to the community and the litigant alike are factors of ever present import" (in maintaining the respect of the citizen for the law).1
Two important problems which, therefore, arise for consideration are-(i) costs, and (ii) delay. Costs of litigation mainly consist of (1) court-fees, (2) lawyer's fees, and (3) expenses incurred in calling witnesses. The question of court-fees has been exhaustively dealt with by the Law Commission in the Fourteenth Report2. The main recommendations in that Report are the following:-
(1) It is one of the primary duties of the State to provide the machinery for the administration of justice, and on principle it is not proper for the State to charge fees from suitors in courts.
(2) Even if court-fees are charged, the revenue derived from them should not exceed the cost of the administration of civil justice.
(3) The making of a profit by the State from the administration of justice is not justified.
(4) Steps should be taken to reduce court-fees, so that the revenue from them is sufficient to cover the cost of the civil judicial establishment. Principles analogous to those applied in England3 should be applied to measure the cost of such establishment. The salaries of judicial officers should be a charge on the general tax-payer.
(5) There should be a broad measure of equality in the scales of court-fees all over the country. There should also be a fixed maximum to the fee chargeable.
(6) The rates of court-fees on petitions under Articles 32 and 226 of the Constitution should be very low, if not nominal.
(7) The fees which are now levied at various stages, such as the stamp to be affixed on certified copies and exhibits and the like, should be abolished.
(8) When a case is disposed of ex parte or is compromised before the actual hearing, half the court-fee should be refunded to the plaintiff.
(9) The court-fee payable in an appeal should be half the amount levied in the trial court4.
A brief reference is also made in the Fourteenth Report5 to lawyers' fee in the following terms:-
"The fees paid to a lawyer so long as they do not exceed the amounts prescribed by the rules framed by the several High Courts under the Legal Practitioners Act, 1879 are also recoverable from the opposite party, if a certificate is filed to the effect that the lawyer has actually received the fee claimed. No doubt the successful litigant does often pay higher fees to his lawyer than he gets from his opponent on taxation. These are however luxury expenses incurred by him for his convenience in respect of which he is not entitled to an indemnity. It may be that if the scales of lawyer's fees have for legitimate reasons risen in particular States, alterations may have to be made in the percentages prescribed by the High Courts under the rules."
In order to indemnify the successful party for all necessary expenses incurred by him, we propose6 that certain items of lawful expenditure, such as (i) expenditure incurred in giving notice before a suit is filed; (ii) expenditure incurred on the typing of pleadings; (iii) charges paid for inspection of the records of the Court; (iv) expenditure incurred for bringing witnesses to Court though not summoned through the Court, which are not at present allowed as costs may, if the Court so directs form part of the taxed costs.
The best method, however, of reducing costs is to improve the rules of procedure so that the length of trial is reduced, because costs increase in direct proportion to the length of a trial. If cases are adjourned from time to time and witnesses have to come to court a number of times before they are examined, the costs incurred in calling them will necessarily increase. So far as the Code is concerned, the problem of costs is, therefore, intimately connected with the problem of delay, to which we now address ourselves.
1. Lord Evershed, in the Foreword to Delmar Karlen, "Appellate Courts in the United States and England".
2. 14th Report, Vol. I.
3. See 14th Report, Vol. I.
4. See 14th Report, Vol. I.
5. 14th Report, Vol. I.
6. Appendix I, Order 20A.