‘SO,’ says a client to their lawyer, ‘what’s it going to cost?’ Historically, with respect to litigation in Pakistan, the only thing that a client is referring to, is what the lawyer’s professional fee will be for a particular case. Litigants are seldom concerned about any additional costs being imposed on them by the courts.

However, in light of recent judgements of the Islamabad High Court, in which heavy cost orders have been imposed on the losing or defaulting side, litigants will now have more than just their lawyer’s professional fee in mind when deciding whether to initiate legal action. Strict implementation of a robust costs regime by our courts can potentially tackle one of the biggest problems plaguing our legal system: delay.

The concept of the losing side of a legal case paying the winning side’s costs, though common in other jurisdictions such as the UK, US and South Africa, is relatively unheard of in Pakistan. Even after finding serious fault with the conduct of the losing side, judgements tend to simply note at the end that there shall be, “No order as to costs”. In doing so, the courts ignore the fact that the winning side may have been dragged through a lengthy and potentially frivolous legal battle, with immense drain on time and resources, and as a result of which its reputation may also have been dragged through the mud.

Through the Costs of Litigation Act, 2017, amendments were made to the Code of Civil Procedure, to the extent of Islamabad. The new amended sections make it mandatory for parties to file details of all the costs incurred during the course of legal proceedings, and also impose an obligation on the courts to award the costs of litigation to the successful party along with a mark-up.

A robust costs regime by our courts can curb a big problem.

Additionally, the courts also have the discretionary power to award any further costs deemed just and appropriate. Moreover, the courts also have a further obligation to award special costs to any party against whom any false or vexatious averment has been made. Despite the imposition of these mandatory obligations by the law for approximately five years, the courts seldom make costs orders.

However, a flurry of judgements recently rendered by the Islamabad High Court suggests that we might be witnessing a fundamental change. The court has not only started to routinely impose costs orders in favour of the successful party but has also begun to impose heavy costs on parties bringing frivolous cases, seeking adjournments, refusing to argue cases or for violating court orders.

In a recent judgement, Justice Babar Sattar of the Islamabad High Court, succinctly summed up the necessity and advantages of imposing costs orders: they indemnify the successful party; encourage settlements pre-empting the need to engage in and/or continue litigation; deter frivolous actions, pleas and defences once litigation becomes inevitable; discourage unnecessary applications and arguments that unduly prolong litigation, consuming inordinate time and resources; and encourage reasonable behaviour by litigating parties. With the Islamabad High Court taking the lead, the courts below will be encouraged to follow suit.

Despite the myriad of benefits, a robust cost regime will have to guard against discouraging those of lesser means from initiating legal action, for fear of being burdened with a heavy costs order, particularly if the other side is armed with a team of expensive lawyers. This is a difficult predicament. One can perhaps hope that competent and honest lawyers would assess such individuals’ cases and encourage legal action only if it has merit, and perhaps consider taking the assignment on a pro bono basis.

Another percei­ved danger of jud­ges having the discretionary po­­wer to impose costs is that it can potentially be used as a tool by judges to settle personal differences or animosity, by imposing unreasonable costs orders. In such an event, the process of appeal would be available to a litigant, through which they could seek to overturn an unreasonable costs order.

Delay is one of the foremost criticisms of our legal system. Delay in courts is primarily caused by a monumental backlog of cases, since the courts are overburdened with frivolous cases. The other major reason is the various tactics used by lawyers to ensure that cases that have merit do not proceed, either by seeking adjournments, or burying the case in numerous opaque interlocutory applications.

If both lawyers and litigants are aware that frivolous litigation and delaying tactics will result in adverse costs orders, then they may well be dissuaded from initiating such frivolous litigation or employing such tactics. This will automatically reduce delay.

Next time a litigant asks their lawyer what it’s going to cost, the answer ought to be, ‘in the event that we lose, potentially a lot more than just the lawyer’s professional fee’.

The writer is an Islamabad-based lawyer.

Published in Dawn, March 1st, 2022