See also the brief history of costs presented in The Law of Costs.

Costs are not natural to the common law.

They came to the English law by way of epiphany of the medieval law-maker.

They came by way of Statute of the Realm.

The point of litigation is to obtain the relief claimed; nothing more and nothing less. There should be no windfall. However, a successful litigant does have legal fees and some costs associated with the prosecution or defence of an action. These are realities.

Gradually, the concept of awarding a form of compensation to the successful litigant sprouted from the English courts.

Costs are what the loser in a lawsuit pays to the winner. They are an annoying component of civil litigation, fair to most but resented by many, especially the losers of law suits!

1267

In 1267, the 52nd year of the very long reign of Henry III, the Statute of Malborough was enacted and for the first time, the word "costs" appeared in English law:

"And if any Chief Lords do maliciously implead such Feoffees, faining this Case, namely, where the Feoffments were made lawful and in good faith, then the Feoffees shall have their Damages awarded, and their costs which they have sustained by occasion of the foresaid Plea, and the Plaintiffs shall be grievously punished by Amerciament."

1278

During the reign of Edward I, the lawyers of Britain went through many bottles of ink in crafting what would become known as the Statuta Gloucestr'. The Parliament, as he fashioned it, met at Gloucester and on October 4, 1278, gave its seal of approval to the Statuta. Written in law French with a sprinkling of Latin, and with some English which still presented "s" as "f", but while also presenting "f" as "f".

Gloucester was presented as Gloucfter and Cases as Cafes.

But it was the pregnant word cofts that would weasel its way through the common law, growing with the Statuta Gloucestr' into the beast of civil litigation we now catalogue as costs:

"[I]t is provided that the Demandant (plaintiff) may recover against the tenant the costs of his Writ purchased, together with ... damages. And this act shall hold place in all cases where the party is to recover damages."

1605

That is all the barristers needed to grow a cottage industry with this little seed of costs. As they pushed the envelope and demanded more and more blood money from unsuccessful defendants, the legislature intervened again in 1605 in what has to be the quaintest title of a statute ever:

An Act to Reform the Multitudes and Misdemeanors of Attornies and Solicitors at Law and to Avoid Unnecesary Suits and Charges in Law

Among other things, the 1605 statute obliged lawyers to give their clients an accounting of their costs and expenses, a "true bill". At that time, a lawyer's invoice or accounting of costs and expenses went by the unique name of bill of costs.

1729

In 1729, at 2 George II, Chapter 23, costs were again regulated as party of a comprehensive statute: An Act for the Better Regulation of Attornies and Solicitors.

This time, the process mostly still in use in all common law jurisdictions, was spelled out. Lawyers had to give their clients their bill of costs and could not sue their client on that bill until a month had passed since delivery of it.

The second step set out in the 1729 statute was to have the bill of costs taxed: not an additional amount of money to be paid, but the process of reviewing the bill of costs by an independent judicial officer. Over time, that office evolved to become a specialized court of its own, one time having the fancy name of Chancery Office of the Six Clerks and, more recently, usually deferred to the jurisdiction of a master or a registrar of a court, a lesser court officer.

2013

Today, costs are part of any good litigator's arsenal at the very least, something to seek if a client wins. But even during the process of litigation, far before final judgment, lawyers sling around the threat of costs at every chance, hoping to spook litigants into abandoning their case.

Some things never change.

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