In the judicial committee of the privy council the power to award, in its discretion, costs on appeals from the colonies or other matters referred to it, is given by § 15 of the Judicial Committee Act 1833; and the costs are taxed by the registrar of the council.
Courts of equity have always claimed a discretion independently of statute to give or refuse costs, but as a general rule the maxim of the civil law, victus victori in expensis condemnatus est, was followed. The successful party was recognized to have a prima facie claim to costs, but the court might, on sufficient cause shown, not only deprive him of his costs, but even in some rare cases order him to pay the costs of his unsuccessful opponent. There was a class of cases in which the court generally gave costs to parties sustaining a certain character, whatever might be the result of the suit (e.g. trustees, executors and mortgagees).
In the courts of common law, costs were not given either to plaintiff or defendant, although the damages given to a successful plaintiff might suffice to cover not only the loss sustained by the wrong done, but also the expense he had been put to in taking proceedings. The defendant in a baseless or vexatious action could not even recover his costs thus indirectly, and the indirect costs given to a plaintiff under the name of damages were often inadequate and uncertain. Costs were first given under the Statute of Gloucester (1277, 6 Edward I. c. 1), which enacted that “the demandant shall recover damages in an assize of novel disseisin and in writs of mort d’ancestor, cosinage, aiel and beziel, and further that the demandant may recover against the tenant the costs of his writ purchased together with the damages above said. And this act shall hold in all cases when the party is to recover damages.” The words “costs of his writ” were extended to mean all the legal costs in the suit. The statute gave costs, wherever damages were recovered, and no matter what the amount of the damages may be. Costs were first given to a defendant by the Statute of Marlbridge (1267) in a case relating to wardship in chivalry (52 Henry III. C. 6); but costs were not given generally to successful defendants until 1531 (23 Henry VIII. c. 15), when it was enacted that “if in the actions therein mentioned the plaintiff after appearance of the defendant be non-suited, or any verdict happen to pass by lawful trial against the plaintiff, the defendant shall have judgment to recover his costs against the plaintiff, to be assessed and taxed at the discretion of the court, and shall have such process and execution for the recovery and paying his costs against the plaintiff, as the plaintiff should or might have had against the defendant, in case the judgment had been given for the plaintiff.” In 1606 by 4 James I. c. 3, this “good and profitable law” was extended to other actions not originally specified, although within the mischief of the act, so that in any action wherein the plaintiff might have costs if judgment were given for him, the defendant if successful should have costs against the plaintiff. The policy of these enactments is expressed to be the discouragement of frivolous and unjust suits. This policy was carried out by other and later acts. The Limitations Act 1623, § 6, ordered that if the plaintiff in an action of slander recovered less than 40s. damages, the plaintiff should be allowed no more as costs than he got as damages. By 43 Elizabeth c. 6 it was enacted that in any personal action not being for any title or interest in land, nor concerning the freehold or inheritance of lands nor for battery, where the damages did not amount to 40s. no more costs than damages could be allowed. By 3 & 4 Vict. c. 24 (Lord Denman’s Act 1840), where the plaintiff in an action of tort recovered less than 40s., he was not allowed costs unless the judge certified that the action was really brought to try a right besides the right to recover damages, or that the injury was wilful or malicious.
All these enactments have been superseded by the Judicature Acts, but in the case of slander on women the provisions of the act of 1623 were re-enacted in the Slander of Women Act 1891.
Supreme Court.—The general rule now in force in the Supreme Court of Judicature is as follows:—“Subject to the provisions of the Judicature Acts and the rules of the court made thereunder, and to the express provision of any statute whether passed before or after the 14th of August 1890, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid. Provided (1) that nothing herein contained shall deprive an executor, administrator, trustee or mortgagee who has not unreasonably carried on or resisted any proceedings of any right to costs out of a particular estate or fund to which he would be entitled under the rules hitherto (i.e. before 1883) acted upon in the chancery division as successor of the court of chancery; (2) that where an action, cause, matter or issue is tried with a jury, the costs shall follow the event unless the judge who tried the case or the court shall for good cause otherwise order.” (R.S.C., O. 65, r. 1.)
The rule above stated applies to civil proceedings on the crown side of the king’s bench division, including mandamus, prohibition quo warranto, and certiorari (R. v. Woodhouse, 1906, 2 K.B. 502, 540); and to proceedings on the revenue side of that division (O. 68, r. 1); but it does not apply to criminal proceedings in the High Court, which are regulated by the crown office rules of 1906, or by statutes dealing with particular breaches of the law, and as to procedure in taxing costs by O. 65, r. 27, of the Rules of the Supreme Court.
The rule is also subject to specific provision empowering the courts to limit the costs to be adjudged against the unsuccessful party in proceedings in the High Court, which could and should have been instituted in a county court, e.g. actions of contract under £100, or actions of tort in which less than £10 is recovered (County Courts Act 1888, §§ 65, 66, 116; County Courts Act 1903, § 3).
For instance, in actions falling within the Public Authorities Protection Act 1893 against public bodies or officials, the defendant, if successful, is entitled to recover costs as between solicitor and client unless a special order to the contrary is made by the court; and under some statutes still unrepealed, double or treble costs are to be allowed. Besides the rules above stated, there is also a provision, adopted from the practice of courts of equity, that if tender was made before action of a sum sufficient to satisfy the plaintiff’s just demand and is followed by payment into court in the action of the sum tendered, the court will make the plaintiff pay the costs of action as having been unnecessarily brought.
Costs of interlocutory proceedings in the course of a litigation are sometimes said to be “costs in the cause,” that is, they abide the result of the principal issue. A party succeeding in interlocutory proceedings, and paying the costs therein made “costs in the cause,” would recover the amount of such costs if he had a judgment for costs on the result of the whole trial, but not otherwise. But it is usual now not to tax the costs of interlocutory proceedings till after final judgment.
Taxation.—When an order to pay the costs of litigation is made the costs are taxed in the central office of the High Court, unless the court when making the order fixes the amount to be paid (R.S.C., O. 65, r. 23). Recent changes in the organization for taxing have tended to create a uniformity of system and method which had long been needed.