The general rule now in force in the Supreme Court of Judica ture is as follows :—"Subject to the provisions of the Judicature Acts and the rules of the court made thereunder, and to the express provision of any statute whether passed before or after Aug. 14, 189o, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid. Provided (I) that nothing herein contained shall deprive an executor, administrator, trustee or mortgagee who has not unreasonably carried on or resisted any proceedings of any right to costs out of a particular estate or fund to which he would be entitled under the rules hitherto (i.e., before 1883) acted upon in the chancery division as successor of the court of chancery; (2) that where an action, cause, matter or issue is tried with a jury, the costs shall follow the event unless the judge who tried the case or the court shall for good cause otherwise order." (R.S.C., 0. 65, r. I.) The rule above stated applies to civil proceedings on the Crown side of the king's bench division, including mandamus, prohibition quo warranto, and certiorari (R. v. Woodhouse, 1906, 2 K.B. 502, 540) ; and to proceedings on the revenue side of that division (0. 68, r. I) ; but it does not apply to criminal proceedings in the High Court, which are regulated by the Crown office rules of 1906, or by statutes dealing with particular breaches of the law, and as to procedure in taxing costs by 0. 65, r. 27, of the Rules of the Supreme Court.
The rule is also subject to specific provision empowering the courts to limit the costs to be adjudged against the unsuccessful party in proceedings in the High Court, which could and should have been instituted in a county court, e.g., actions of contract under f roo or actions of tort in which less than L ro is recovered, unless the plaintiff, claiming a liquidated sum, has taken proceed ings under 0. 14 in the High Court, in which case he may get High Court costs if he recover over £20.
Costs of interlocutory proceedings in the course of a litigation are sometimes said to be "costs in the cause," that is, they abide the results of the principal issue. A party succeeding in inter locutory proceedings, and paying the costs therein made "costs in the cause," would recover the amount of such costs if he had a judgment for costs on the result of the whole trial, but not otherwise. But it is usual now not to tax the costs of interlocu tory proceedings till after final judgment.
When an order to pay the costs of litigation is made the costs are taxed in the central office of the High Court, unless the court when making the order fixes the amount to be paid (R.S.C., 0. 65, r. 23). Recent changes in the organization for taxing have tended to create a uniformity of system and method which had long been needed.
The taxation is effected, under an elaborate set of regulations, by reference to the prescribed scales, and on what is known as the lower scale, unless the court has specially ordered taxation on the higher scale (R.S.C., 0. 65, rr. 8, 9, appendix N).
In the taxation of litigious costs two methods are still adopted, known as "between party and party" and "between solicitor and client." Unless a special order is made the first of the two methods is adopted. Until very recently "party and party" costs were found to be a very imperfect indemnity to the success ful litigant; because many items which his solicitor would be entitled to charge against him for the purposes of the litigation were not recoverable from his unsuccessful opponent. The High Court can now, in exercise of the equitable jurisdiction derived from the court of chancery, make orders on the losing party to pay the costs of the winner as between solicitor and client.
These orders are not often made except in the chancery division. But even where party and party costs only are ordered to be paid under the present practice (dating from 1902), the taxing office allows against the unsuccessful party all costs, charges and ex penses necessary or proper for the attainment of justice or defending the rights of the successful party, but not costs incurred through over-caution, negligence, or by paying special fees to counsel or special fees to witnesses or other persons, or by any other unusual expenses (R.S.C., 0. 65, rr. 27, 29). This practice tends to give an approximate indemnity, while preventing oppres sion of the losing party by making him pay for lavish expenditure by his opponent. The taxation is subject to review by a judge on formal objections carried on, and an appeal lies to the Court of Appeal.
The practice and procedure of the courts in the varous juris dictions of the United States is derived, in the main, from the English common law system of court administration. But since each State or Territory and the Federal Government, in addition, has its own system of courts and its own procedure, a considerable diversity exists. In general, a reform of the common law pro cedure has occurred in many ways similar to the English reforms of the 19th century. The extent of the reform varies in the differ ent jurisdictions. The most important change is that of the so called code reform of procedure inaugurated by the code of civil procedure adopted in New York in 1848 and now in force in 3o American jurisdictions.