The cost of litigation

We have spent years discussing judicial reforms: more judges, simpler procedures, mediation and arbitration. All matter. But a basic incentive remains ignored. A person who makes another litigate without reason seldom bears the reasonable cost of doing so.

I graduated in 2016, returned to Pakistan and practised for two years before leaving for my Bar in the UK. Costs caught my attention during the civil litigation course. In England and Wales, they were no postscript. They shaped pleading, conduct and settlement.

The contrast was stark. In Pakistan, I had seen weak claims, untenable defences, repeated adjournments and unnecessary applications pursued with little fear of reimbursing the person forced to answer them. At the Bar, unreasonable conduct carried a financial consequence.

Part 36 of the Civil Procedure Rules was especially striking. A formal offer remains hidden from the trial judge until the merits are decided. If a claimant rejects a defendant's offer and fails to do better at trial, costs may follow despite a technical victory. The rule asks not only who won, but when continuing ceased to be reasonable.

After returning, I began seeking costs when a valid claim succeeded, a baseless case was dismissed or proceedings were needlessly prolonged. A decade into practice, the familiar response remains: "Counsel, the case has been decided in your favour. You should be satisfied. Forget about costs."

The response is usually well intentioned. Thank God your client is out of court, it suggests. What more could one want? But relief at escaping injustice is not a remedy for enduring it. A judgment cannot return lost years, fees, opportunities or peace of mind. For many, the process is the punishment.

And what of someone who never expected to win? If proceedings were brought to harass, delay or exhaust, their pendency may achieve the objective. The wrongdoer loses the case but wins years of pressure. The successful party leaves with a judgment and the bill. Dismissal is no deterrent when defeat was priced in from the start.

Costs are neither a prize for every winner nor a punishment for every loser. They compensate someone compelled to litigate and impose a consequence for abusing a public institution. Every needless hearing also delays somebody else's genuine dispute.

Other systems recognise the problem. Under Part 44 in England and Wales, the unsuccessful party ordinarily pays the winner's reasonable and proportionate costs; conduct and settlement matter. Ontario and Australia attach consequences to rejected formal offers. Germany generally makes the loser bear necessary costs. In the US, each side ordinarily pays its lawyers, but federal Rule 11 permits sanctions for filings used to harass, delay or advance frivolous legal or unsupported factual contentions. Counsel may also be liable for vexatiously multiplying proceedings.

Pakistan is not short of authority. Section 35 of the Code of Civil Procedure provides for costs. Islamabad's Costs of Litigation Act, 2017 recognises actual, adjournment and special costs, while Punjab's 2018 amendment says costs shall follow the event. Yet section 35C of the Islamabad framework exempts the Government. How does that sit with public accountability?

In Qazi Naveed ul Islam v District Judge, Gujrat (PLD 2023 SC 298), the Supreme Court imposed Rs100,000 after litigation was pursued for over a decade to settle a personal grudge. It said realistic costs compensate those subjected to unnecessary proceedings and help purge frivolous claims and defences. In Asma Haleem v Abdul Haseeb Chaudhry (PLD 2024 SC 663), it imposed Rs50,000 where litigation delayed a property auction. The power exists. The habit does not.

Government litigation deserves attention. Having advised public bodies and appeared on both sides, I have seen appeal become an administrative reflex. The question is often not whether an appeal has merit, but whether an officer can safely decline it. One who accepts a sound judgment or recommends settlement may face audit objections, a departmental inquiry, an anti-corruption agency or NAB, asking why every remedy was not exhausted. Another appeal attracts no similar suspicion. It becomes the safest note on the file.

The State occupies a position no citizen shares. It has public money, continuity and time. Its opponent has finite savings, a livelihood and a life consumed by hearing dates. The department does not tire. The citizen does. What appears cautious inside an office can become attrition outside it.

Each government appeal should require a recorded opinion on merit, while officers who decline hopeless cases or approve sensible settlements should be protected. A serious adverse costs order should trigger internal review. Personal responsibility should follow only upon proven bad faith and due process.

The concern extends to criminal law. FIRs may be lodged to settle scores or gain leverage in private disputes. Arrest, bail and repeated appearances can punish before acquittal. Yet acquittal does not prove a complaint false, and genuine complainants must not be deterred. Where a court finds an accusation knowingly false, frivolous or vexatious, compensation should follow. Section 250 of the Code of Criminal Procedure permits this in certain magistrates' cases, but its reach is limited.

What would reform require? Every final civil judgment should address costs and explain any departure from the rule. Parties should file verified schedules; courts should award reasonable and proportionate expenses. Avoidable adjournments, concealed documents, repetitive applications and disobedience should attract immediate costs. Pakistan should adopt confidential settlement offers, with consequences where a party rejects one and fails to do better. Orders must be enforceable.

There must be safeguards. Losing is not misconduct. Costs must not silence indigent litigants, constitutional challenges, public-interest cases or honest arguments. The aim is disciplined litigation, not justice reserved for the wealthy.

We still need mediation, arbitration and better case management. But none will achieve much while delay remains profitable and abuse virtually free. People do not settle merely because law praises settlement. They settle when unreasonable continuation carries a credible consequence.

Pakistan need not make access to justice unaffordable. It must make the abuse of justice no longer cost-free.