date

27 Feb y 1807 C2 + B.1 L d
27 Feb y 1807

C2 + B.1

L d Grenvil 1. Proposs[...?]

Letter V

I Inadequate compensation[?]

III 1. Costs

II.[...?]

II. Occasional excessiveness.

Considered in the character of a check or remedy in the nature of a punishment against purposed delay, the eventual [...?] of burthen designated by the name of costs is tainted with another imperfection: - besides falling short of the mark, and so being to every good purpose ineffectual, it is liable to go beyond the mark, and so to become oppressive. To ward off this oppression is, even under the natural system, matter of some difficulty: under the technical system, it is impossible.

It falls short of the mark, if the allowance made at the expence of the vanquished parts to the victorious falls short of the burthen in all shapes, pecuniary disbursement of money being but one, which he has borne: in this case there is so much injury rests on the party in the right, injury for which no satisfaction is received.

The check imposed by allowance of costs goes beyond the mark, if, in contemplation and expectation of the allowance provided for him as he supposes by the law, in /on/ the name /score/ of satisfaction, for the burthen provisionally imposed on him in the shape of expence and miscellaneous vexation, he himself, whether through design or negligence, gives to the weight of that burthen an unnecessary increase.
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  • Title: [22 June 1807 4 Letter V]
    Description: 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.
  • Title: [PRIVATE 29 June 1807 Note]
    Description: PRIVATE

    29 June 1807

    Note

    Letter V

    II. Litigation

    It is not always enough to keep down satisfaction unless every thing else to which it can happen to operate as a check to the commission of wrong be kept down with it. It is only by the prospect of the evil attached to the obligation of rendering the satisfaction that it is in the power of satisfaction to have that effect: and in any other shape, such as that of punishment or that of costs, a quantity of evil in appearance the same will by the view taken of it in prospect be productive of the same effect.

    In every dimension of its value, in magnitude, in certainty, in proximity you must therefore remember to keep down value, that is apparent value, value as it appears to the eye of the proposed wrongdoer, as well in the instance of punishment and costs, as in the instance of satisfaction, as above.

    Observe how well this has been done in regard to costs. In a multitude of instances the legislature considering that under the name of damages, the operation of fixing the magnitude of the satisfaction was always performed by Juries, of whose practice nothing could be foreknown, employed upon costs, as a sort of burthen the quantity of which was not thus exposed to uncertainty, and to make the check the stronger imposed in some instances death costs, in other truth[?] costs.

    Thus was an injury done to the partnership, and was not to be considered. Where the legislature has said give twice the amount of the costs we give but one and a half as much: where the legislature says give treble costs, we give less than double.

    Besides counteracting the wicked designs of the legislature in these particular instances, this example does a world of good in other ways.
  • Title: [/25[?]/1 June 1807 Scotch Reform To]
    Description: /25[?]/1 June 1807

    Scotch Reform To L d Grenville

    Letter V

    II. Proper Remedies

    The importance of this object in the eyes of Judge and C o may be judged of by the risk they were content to run rather than give up the pursuit of it.

    By Acts of Parliament in great number and variety, under the notion of preventing malâ fide defence, and thereby removing the obstacle to bonâ fide pursuit, in the event of judgment in favour of the plaintiff, the burthen of extra costs have been imposed, that is endeavoured to be imposed on the Defendant: in some instances, the allowance to be made under the name of costs has been directed to be doubled; in others, trebled.

    By Judge and C o how has this engagement been fulfilled? how has this direction been fulfilled? When the order is to give double costs what they give or profess to give is single costs, with half single costs, and no more: where the order is to give treble costs, what they give or profess to give is single costs, with half single costs, and a quarter of single costs, and no more:- not so much as double costs.