Report No. 240
6. Advocate's Fee
6.1 The most important component of the cost is the advocate's fee. It is on this count, a party to the litigation is put to heavy expenditure which he will not be in a position to recover, if the status quo in regard to Advocates'/Legal Practitioners' Fee Rules is maintained.
6.2 The scale of Advocate's fee, as it presently stands, is quite low especially in regard to matters which do not admit of valuation or only notional valuation is shown for the purpose of court fee. To this category belongs injunction suits, declaration of status, matrimonial disputes including guardianship matters and so on.
These matters involve high stakes and proceedings are long-drawn. Even then, the advocate's fee prescribed does not satisfy the reasonable standard criterion. Further, even when the suit is valued for the purpose of court fee (ad valorem) , the advocate's fee prescribed is not adequate and it needs to undergo upward revision in terms of percentage.
6.3 We may give certain illustrative examples of grossly low amount allowed under the head of "Fees of counsel' 'Advocate's fee' as well as apparent contradictions. As per the Delhi High Court Rules framed under the antiquated Legal Practioners Act, 1879, the fee payable in the suit for recovery of property, money, breach of contract or damages, "if the amount of value of property, debt or damages decreed" is Rs. 1 lakh, it is Rs. 6500, and the fee is Rs. 14,500/-if the amount or value is Rs.5 lakhs.
The maximum fee payable is fixed at Rs.20,000/( vide Rule 1 of Part B of the Rules made by the High Court under the Legal Practioners' Act). The advocate's fee specified in the Schedule to Chapter XXIII, "Taxation of Costs" forming part of the Delhi High Court (Original Side) Rules, 1967 is the same for "defended suits". The same Rules stipulate that in appeals, the fee shall be calculated at half the scale as in the original suits.
In suits for injuries to the person or character or where the pecuniary value of such injury or right cannot be exactly defined such as partition of joint property or other suits which cannot be satisfactorily valued, the maximum fee payable is Rs. 5,000/-, the minimum being Rs. 500/-(vide Rule 2 of part B of the Rules framed under the Legal Practitioners' Act). However, in Part (1) of the Chapter 6 of the Rules1Rules relating to proceedings in the High Court of Delhi (volume V of High Court Rules and orders) which bears the same heading "Fees of Counsel", the quantum of fee specified is different, though the description of suits is substantially the same.
In miscellaneous proceedings, the fee prescribed is Rs.250/-in the Court of a District Judge and Rs.48/-in the court of a Subordinate Judge. In matrimonial proceedings, the maximum fee payable is Rs.1500/-. In regard to expenses on witnesses, there is a stipulation that unless the sum is paid through court, they cannot be included in the cost awarded. In appeals, half of the fee applicable to the original suits is payable.
That means the maximum fee payable will be Rs.10,000/-irrespective of the value of the appeal. The Delhi High Court Rules contains an interesting provision that fee of advocate/vakeel who is known to have dealings with dalals or other persons frequenting the railway station/sarai or other place as tout, no fee shall be allowed to a party who has engaged such an advocate. It appears that the High Court of Delhi is taking steps to revise the rules.
6.4 Reference may also be made to the Civil Court Rules framed by Jharkhand High Court. Rule 426(i) says that the Advocate's fee shall be in the discretion of Court. Instead of a fixed percentage, for various slabs ranging between Rs. 5,000/-and Rs. 50,000/-maximum and minimum percentages are prescribed, which makes the job of the Court difficult at times. The maximum advocate's fee allowable is Rs.1550/-if the amount or value of the claim decreed or dismissed as the case may be is Rs. Rs.50,000/-and if it exceeds Rs. 50,000/it is half per cent to one per cent.
That means if the value of the suit is Rs.10 lakhs, the fee payable works out to about Rs.11,050/. The minimum fee to be allowed to an advocate is specified as Rs.10/-in contested cases and Rs.5/-in uncontested cases. The maximum hearing fee in appeals from decrees is prescribed to be Rs.10,000/- and for drafting the grounds of appeal, the maximum fee is Rs.500/-. In appeals from orders and second appeals, the hearing fee is as low as Rs. 500/-. In a matrimonial suit (defended suit), the fee payable for first day of hearing is Rs.500/-and thereafter it is Rs.250/-.
The process fee, copying charges, the witness allowance and the cost for obtaining the opinion of finger print expert are all prescribed at grossly low rates. The process fee is as low as Rs.3/-and 0.75 paise in the lowest court. . There is a rule which speaks of a salary of a Government servant being Rs.10/-per month. The diet allowance for a witness is prescribed as Rs. 30/-per diem. All this would disclose that even at the time of notifying the rules in 2001, the outdated/vintage rules governing costs including advocate's fee are retained.
6.5 In the year 2010, the Andhra Pradesh High Court amended the A.P. Advocate Fees Rules. Serious effort was made to update the said rules so as to make the advocate's fee in various categories of cases quite realistic and reasonable, though there is scope to further revisit some of the rules. A copy of the Rules is annexed to this report (Annexure-II).
6.6 The unfortunate litigants often wonder whether for the fee prescribed in some of the High Court Rules, a reasonably competent advocate can be engaged. The Advocate's Fee Rules, barring a few amendments here and there have substantially remained the same for decades. While excessive scale of Advocate's fee based on actuals or otherwise should be avoided, the scales of fee presently in vogue need to be revisited so that a reasonable and realistic advocate's fees structure can be put in place.
There is every need for periodical revision, once in five years or so, of advocate's fee in consultation with the stake holders. The standard of reasonably competent and fairly experienced advocate has to be applied while revisiting the rules governing the Advocate's fee.
6.7 The rules prevailing in some States allows a proportion of prescribed advocate's fee as Junior Counsel's fee. It is one-third or so of the main advocate's fee. If such provision is not there in some of the Rules, it is necessary that the High Courts while reformulating the Rules should keep this aspect in view.
6.8 As far as the Government Counsel's fee is concerned, if the advocate's fee payable by the Government or local authority or PSU under the agreement or rules or terms of appointment is less than the fee payable under the normal rules, the fee allowable ought to be restricted to the amount specified therein.
6.9 It is also necessary to prescribe reasonable advocate's fee for remanded cases and contested execution petitions as there are no such rules in some States. However, it is noted that in some of the rules, half the fee (payable in main suit) is prescribed for remanded cases and one-fourth fee in execution petitions. Even here, there is need to prescribe a minimum.
6.10 In cases where the value of the suit/appeal is only notional or incapable of valuation (such as injunction suit, suit for declaration of status) and in matrimonial proceedings, the quantum of advocate's fee which at present works out to a very low figure, has to be increased. A reasonable minimum fee has to be prescribed. Injunction suits for infringement of patents, trade marks, etc., call for enhanced court-fee; especially, the minimum has to be specified having regard to complex nature of such cases.
6.11 Wherever fixed/maximum advocate's fee is prescribed in respect of certain categories of proceedings, the same needs to be enhanced suitably. In respect of advalorem fee, the percentage prescribed needs to be increased if the suit value exceeds say, Rupees three lakhs. Maximum should also be increased. This will take care of high value commercial and property litigation where high stakes are involved.
6.12 The advocate's fee allowed in appeals against orders (AAOs, CMAs or whatever name called) such as the arbitration matters, matrimonial disputes, etc., should also be suitably enhanced.
6.13 It is desirable that a separate fee for drafting of pleadings including appeal memorandum should be prescribed/increased.
6.14 It is common knowledge that every litigant makes payment to advocate's clerk. Some times, the clerkage amount is collected along with the advocate's fee. Excepting in few States, clerkage is not specified as a component of costs. It is just and proper that clerkage should be included as an element of costs and the allowable amount towards that item is spelt out in the rules or a guiding principle is evolved in this behalf.