The cost of civil litigation is so high that many people abandon their rights rather than go to a court of law. Ordinary people are not so fortunate as to get speedy trial and Rs 100 crore in damages for a dented image caused by the fleeting television screen. The widow and children of a road-accident victim would be lucky if they get a few lakh in hand for the loss of their breadwinner, after the contingency fee cut by the lawyer.
The Supreme Court touched on the cost-effectiveness of litigation in a judgment last month (Sanjeev Kumar Jain vs Raghubir Saran Charitable Trust) and regretted the whole field was cluttered by rules and whimsicality of judges. In this case, a tenant who lost his case was ordered by the Delhi High Court to pay Rs 45.28 lakh to the winning landlord as the latter’s court expenses. The rule followed by the courts is that the loser should pay the bills of the winner. This rule has been sanctified by Section 35 of the Civil Procedure Code.
But how does one know how much a party had spent on the litigation? The lawyer’s fee is the most expensive part. Gone are the hoary days when they attached a “fee bag” on the gowns at the back and the clients were free to drop into it any amount they could afford. No demands. If you examine the gown these days, there is only a square patch where the fee bag stood. Unspecified sums are paid elsewhere; it could even be in a non-descript island thousands of kilometres away and the consideration could be in kind.
So how could a high court reach the conclusion that the winning party spent over Rs 45 lakh? He claimed that he paid Rs 29,73,000 to one senior lawyer, Rs 14,41,000 to another and comparatively miserable sums to juniors. The high court accepted the claim. Commenting on this, the Supreme Court remarked: “The actual, realistic cost should have a correlation to costs which are realistic and practical. It cannot obviously refer to fanciful and whimsical expenditure by parties who have the luxury of engaging a battery of high-charging lawyers.” If the high court’s logic is adopted, the loser will be forced to pay costs, not with reference to the subject matter of the suit, but with reference to the paying capacity of the other side, the judgment said. The Supreme Court shows the illogicality of the high court’s proposition by giving an example. A person sues a rich man for recovery of Rs 1 lakh. The latter engages a lawyer (or a team of four as in the present case) who charges Rs 1 lakh per hearing and the matter involves 30 hearings; adjournments extra. Should the loser be burdened with this exorbitant bill?
In this case, the court called an expert, Dr Arun Mohan, to assist it in finding a solution. The Law Commission was also asked to help. Notices were issued to high courts for reviewing their rules regarding computation of costs. After analysing the data, the court made several suggestions contained in 14 paragraphs of the judgment. The moot question is whether the law-makers will have time to study and adopt them.
Another serious snag in working out the real cost of litigation is the outdated schedules followed by courts while calculating the court fees and lawyer’s fees. The absurdity can be seen from the Supreme Court Rules that prescribe Rs 2,400 as fee for a senior who leads the argument, and Rs 1,200 for advocates-on-record who are the only ones authorised to conduct the cases. The corresponding figures in appeal cases are, hold your breath, Rs 800 and Rs 400! In the Delhi High Court, the maximum is Rs 2,000. This is much less than what a grateful client would put in the now-discarded fee bag. If you show the rulebook to your lawyer, you would lose your case even before it starts.
Though the court fee is generally believed to be high, it is very low and the judgment has called for a revision upward. In the Supreme Court, the maximum court fee is Rs 250, whether it is a suit or appeal. The court’s suggestion is that the law should be changed to fix the court fee sufficiently high to have some kind of quid pro quo to the cost involved. Again, it is for the government to make these non-controversial but profound changes in the legal system. The law, at present, is so outmoded and unreasonable that they serve only to confound judges and litigants alike, leading to unconscionable orders.
