3 Comments

Viz the litigation lawyer commenting on your book, I observe here since he does not allow comments,

He completely misses the boat on the English Rule / American Rule for legal costs.

His basic argument seems to be “the American rule encourages people to experiment with potentially innovative cases which is why we have important decisions like Palsgraf; the British rule, absent this advantage, deprives them.”

Not only does this completely miss the point, I can’t think of a more classic example of the legal chauvinism for which Americans are known than this (but more on that below).

The critic seems to take the rule as all or nothing. That may be how it is in Britain or the US, at which point it’s entirely easy to see why you might prefer black over white, but the Canadian rule (at least in my jurisdiction) is a qualified British rule. Costs are shifted to the loser, but the imposition of these costs is facultative. It’s optional. Not obligatory. Depending on the circumstances of the case. This means that the judge may order no costs, some costs, only costs related to such-and-such a subject or such-and-such a time period, or anything else. This means that if you have someone filing a suit against his neighbour because his neighbour wears red too often or something stupid, the judge is damn well going to impose costs as an economic punishment for wasting the court’s time.

By contrast, there are many cases (even beyond “friendly” litigation) where the judge does not award costs (or only awards partial costs) based on not only the merits of the plaintiff’s side, but also each side’s conduct. If you win after 100 hours of trial time but 90 of those hours was completely irrelevant, you may win the judgement and costs for the 10 hours, but may then owe opposing counsel 90 hours.

The point is that it’s not meant to be a blanket policy, but something a little more fine-tuned to each circumstance. Don’t get me wrong, there are plenty of problems with this model as well. If a homeless person sues McDonalds for being part of an alien conspiracy to control his brain, it doesn’t matter if he’s stuck paying all costs or half or what – McDonalds is out money anyway. Besides, costs awards are almost never sufficient for the winner – they’re a bare minimum, like if your expense account while traveling allowed you to expense no more than it would cost for buying food from a grocery store, and not a restaurant.)

Finally, from a Canadian perspective (Canadian law schools lean heavily on UK jurisprudence, though American cases are often cited as well), not only does each country have more than enough cases to address a certain legal issue (the idea of a vehicle case should be obvious to any attorney), but we in Canada also studied Palsgraff as well as UK and Canadian jurisprudence. Each country has its own test case for the same legal issue, and sometimes a foreign case supplements it. This idea that one country or another is deprived of huge veins of jurisprudence due to a cost rule seems a little much – even with our costs rules in Canada, we also have our fair share of bizarre lawsuits. (For fun, look up the short and highly entertaining Joly v. Pelletier, [1999] O.J. No. 1728)

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