Law on the anvil to curb frivolous litigation

ISLAMABAD: A law is ready for enactment to curb false, frivolous and vexatious litigation and impose a heavy cost on such plaintiffs.

The draft law has been formulated by the law review committee, constituted by Prime Minister Nawaz Sharif some time back, one of its members told The News. The committee is reviewing a large number of laws to reform the legal system.

It is being made mandatory that the litigants of suits of civil nature will deposit the cost at the time of filing such cases. Thus, the official said, they will feel from day one that if they lose, the money they have deposited with the case will go to their rivals. 

It is an established practice that a large number of people entangle their opponents in false litigation to make them suffer despite knowing that they have no grounds to prove their case. Under the proposed law, the cost will be disbursed to the defendants in case they win the suit.

A provision regarding the cost exists in the present law, but a decision about its payment is dependent on the direction of the court contained in its judgment. Normally, the official said, courts order that the costs of the suit would be borne by the parties involved. He said this allows false and frivolous litigation that apart from causing sufferings to the innocent parties also brings a heavy workload on the courts, which have a large number of genuine cases to deal with that keep dragging.

In cases where the court passes an order that costs shall not follow the event, it shall state its reasons in writing. The draft law envisages that a court shall award costs of litigation to the successful party in the proceedings at the time of passing the judgment, final order or a decree.

As per the draft law, the costs decision could be given by a civil court, high court, the Supreme Court, Ombudsman, federal and provincial service tribunals, quasi-judicial forums and such other authorities or bodies including the regulatory authorities that the government may prescribe.

It has been noted that the tendency of filing false and un-maintainable cases and taking baseless grounds for defence has increased alarmingly. This trend leads to numerous evils involving heavy expenditure incurred by innocent persons causing them financial loss and mental torture.

The existing sections 35 and 35A of the Code of Civil Procedure (CPC) do not adequately cater to the nagging situation, it has been pointed. It is therefore necessary to make comprehensive provisions to empower the courts to impose heavy costs to discourage false and frivolous litigation.

According to the draft law, on an application of a party to the proceedings a certificate from the advocate in regard to the legal fee paid, the court may pass an order directing the parties to deposit a fair amount as a provisional cost. A party may claim costs of the litigation, and at the end of the proceedings, shall file details of their case. On the conclusion of the proceedings, the court shall pass a specific order with regard to the award of costs of litigation. 

The draft will be sent to the provinces with the federal advice to enact it because after the eighth constitutional amendment it is the power of the provincial governments to change the CPC. However, it will be a different case if the National Assembly passes a resolution calling for amendment in the CPC.

Meanwhile, the review committee has also prepared a draft law for introduction of Alternate Dispute Resolution (ADR) for speedy disposal of cases through arbitration with the involvement and on the direction of the courts.

As per the draft, the courts will give a chance to the parties to get their dispute settled through arbitration. Once they agreed, they will be bound by the findings reached by the arbitrators. Their report will be announced as the decision of the concerned court.

This mechanism, the official said, will drastically cut down the workload of the courts. Even now, the courts also refer some disputes to commissions so that the parties are heard out of court to arrive at a mutual settlement.

Generally, the courts accept the findings of the arbitration and commissions. However, the ADR law will strengthen this process with a view to encourage litigants to opt for the alternate resolution.