Report No. 128
Components of Cost of Litigation
2.1. Before attempting to ascertain the areas where the expenses are incurred by litigants in initiating or prosecuting or defending litigation, it would be worthwhile to recall the broad heads under which the litigants have to bear expenditure in prosecuting or defending litigation. They may be broadly grouped as under:-
(1) advocates' fees, including the fees for serving notice wherever it is necessary;
(2) court fees and process fees;
(3) travelling expenses, etc., of litigants and witnesses;
(4) costs for obtaining copies of documents, typing and other miscellaneous expenses;
(5) costs on account of adjournments; and
(6) costs payable by the vanquished party to the successful party.
2.2. Each head may be separately analysed with a view to spotting areas where the costs borne by the litigants may be either wholly eliminated or at least considerably reduced. The Law Commission is not concerned with all litigants. Its recommendations are relevant for those litigants who can ill-afford the prevalent costs of litigation and who may be forced, in the language of Article 39A, to give up securing justice, resulting in denial of justice by reason of economic barrier. It is this class of marginal litigants that the Law Commission has kept in focus while examining the heavy burden of costs of litigation.
The Law Commission is aware that there is a class of litigants to whom the quantum of costs is not at all a relevant factor in pursuing litigation. In fact when the opponent is from an economically impoverished class, the well-to-do opponent, irrespective of the cost of litigation, will pursue it relentlessly either to tire out the impoverished litigant or to impose upon him an unfair and unjust compromise.
It is for this class of litigants coming from the impoverished segment of society and designated as economically disadvantaged class of litigants, for whose benefit rights have been created or privileges and concessions have been conferred by statutory and executive orders but who are denied the same and are unable to enforce the same through justice system on account of economic barrier, that the Law Commission is concerned.
Those who have cushion and want to spend on litigation as a luxury are not the concern of the Law Commission. This report may be understood and appreciated by keeping in focus those litigants from impoverished segments of our society, styled as economically disadvantaged class of people.