date

22 June 1807 4 Letter V
22 June 1807

4

Letter V

II. Litigation

III. Def t malâ fide

Costs

Forced disbursement, whether in the way of original disbursement or in the way of reimbursement - costs in English law the word used in both cases - this burthen though pro tanto, viz. according to the apprehended probable amount of it, the apprehension of it acts or helps to act in the character of a check upon litigation viz. upon litigation in whatever shape, and thence amongst others in the shape of litigation, though a malâ fides on the defendant's side yet beyond that amount, it is of course without action or without effect in that way or any other.

If by factitious delay, continued for one, for two or for any other number of years, matters are so ordered that the defendant shall, clear of all burthen on the score of satisfaction, make a profit to the amount of £200, it is not the assurance of a burthen, though it were ever so strong, in the shape of costs amounting to £100, £150, no nor £199 that will have the effect of preventing him from bearing his part in the making of such delay: deduction made of the profit on one side counterballanced by the loss on the other, there will always remain in the three several cases a profit of £100, £50, £1, neat and without any thing to counterbalance it.

In no case, let them amount to what they will, do costs paid by the defendant either in the way of original disbursement or in reimbursement of costs disbursed by the Plff. operate, as to any part of them, in satisfaction of the main demand made by him in and by the suit, unless in so far as gratification of enmity may have been the object of it: in no case does the expectation of any part of them which finds its compensation as above, in profit extracted from the delay, contribute to constitute in two[?] instances a check to the delay, contribute to lessen the inducement by which he is urged to bear a part in making it.
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  • Title: [24 June 1807 (9) Letter V]
    Description: 24 June 1807

    (9)

    Letter V

    II. Litigation

    II. Def t malâ fide

    Directions unexplained savour of arrogance - and of imposture[?] yet cleare[?] and more[?] expression: and the above objections are obviated by this previous explanation:

    What remains is to adapt to the situation and character of such species of malâ fide defendant the general rule or maxim - viz. in the fabrication of the delay, enable him to be or what comes to the same thing to expect to find himself, upon the whole, a gainer by it: and of course to the greater amount the better.

    I. For the encouragment of the malâ fide defendant whose object [is] combating for intermediate profit by delay.

    1. Make the length of delay capable of being purchased by him, as great as possible.

    2. Keep down in value, as much as possible the value of every burthen, capable of tending in the character of a check to restrain him from committing the wrong, or if committed, from giving continuance and addition to it, by malâ fide defence: burthen for example of satisfaction of rendering satisfaction for the wrong: burthen of costs: so far at least as concerns the eventual obligation of reimbursing to the plaintiff the disbursements made by him on occasion of the suit.
  • Title: [6 July 1807 13 Letter V]
    Description: 6 July 1807

    13

    Letter V

    II. Litigation promoted

    3. Keep down costs: meaning as usual, reimbursement of costs:- not the money which each or either party has disbursed, but that money which the party against whom the decision passes has the disadvantage in the cause, is obliged to pay to the winner, in reimbursement for the disbursement made on his part:

    On the party on whom a burthen in this shape is imposed the recent wrongdoer, the defendant, it operates as so much punishment: which on the other party, the injured plaintiff, though it does not operate as satisfaction viz. as for the damage by the wrong, yet it operates per tanto in alleviation of an additional and collateral burthen, antecedently to the removal of which satisfaction for the wrong can not ever take place. Accordingly you should keep down costs as well as satisfaction and punishment, and for the same reasons.

    When the money that had been disbursed on the occasion of the suit by the winning party has been disbursed by him, if under the name of costs he receives any thing more of this surplus or any part of it be given the name of costs such name will evidently [be] fictitious and improper. Considered as going into the pocket of one party, it is so much satisfaction: or, in case of his having no personal interest in the subject matter of the suit, but on the public account, performing the function of prosecutor instead of a public officer, and for a reward, and thence by contract, it forms part of the reward: considered as coming out of the pocket of him who pays the costs, it constitutes so much punishment. But whatever be the name it goes by, it will pro[?] tanto operate in the way of satisfaction or in the way of punishment, or in both at once, and must therefore be kept down for the same reasons.
  • Title: [20 June 1807 (3) II. Litigation]
    Description: 20 June 1807

    (3)

    II. Litigation

    II. Defend t malâ fide

    Expressed by the most general description it admitts of, the policy employed for the multiplication of this species of litigant consists in the giving to the wrongdoer in possession the assurance of his keeping in his hands, even after and notwithstanding a decision divesting him of the subject matter itself, the mesne profits of it, or as large a portion of them as possible, for as long a time as possible, and clear, to as great an amount as possible, of all burthen, in the shape of satisfaction to the party injured, or reimbursement of his costs of suit or, in a word, in any other shape.

    It consists accordingly in avoiding as much as possible, to make any of those arrangements which in the view of preventing the wrongdoer to the greatest possible extent from profiting by his own wrong, would at the suggestion of common sense have been originally employed by the policy, and in consequence of the development of the sinister policy of the Judge would now be employed by the counterpolicy of the legislator.

    This phrase - taking advantage of his own wrong, applies to malâ fide plff. as well as defendant, and should therefore be introduced earlier or not so early.

    Now speak of the different modes and degrees of mesne profit - commercial, non-commercial, ordinary, extraordinary. Here, or under §.3. Proper Remedies?

    See Proper Remedies Contents p.2. note 37 to Let[?].