The law of costs and the cost of law.

• Author: Bowal, Peter

Introduction

Equality is one of the most important underpinnings of law and justice. This encompasses equal access to the law. Numerous initiatives ease the difficult and expensive engagement with law that most citizens encounter. These measures include free public legal databases, pro bono programs and legal aid services. However, when you need a lawyer, access to law comes at an extremely high price.

This article describes the law of costs when engaging lawyers.

Legal Costs and Expenses

The cost of law can generally be divided into court costs, other litigation costs, and lawyer costs.

Court Costs

Governments largely socialize the costs of justice. They pay for the construction and operation of the courthouses and the judges' salaries. They only ask that users of courts in civil cases pay a small 'filing' fee. Even the Supreme Court of Canada charges only $75 as a user fee. The lower courts charge slightly more. For example, it costs $200 to launch a small claims matter over $7500 in Alberta.

While relatively low, these filing fees may still be waived by a judge if you claim it would be a financial hardship to pay them. Court costs are either readily affordable or waivable. They are not a bar to accessing the legal system. The doors of justice ought to be open to all.

Other Litigation Costs

There are various other ligitation-related expenses that must be paid. These can include covering a portion of the lawyer's business overhead, such as secretarial and paralegal time, computer use and photocopies. Other costs are called "disbursements"--actual and necessary expenses incurred by the lawyer performing legal services for their client and paid to third parties. Long distance telephone calls, medical reports, document binding and courier charges come to mind, as well as charges for database legal research and expert witnesses.

Each party pays according to what is needed in the litigation. Like court fees, overhead charges and disbursements are not usually prohibitive cost components for most people. By far, most of the high cost of using the courts arises from the very expensive professional service fees charged by law firms to perform their services.

Lawyer Costs

For small value disputes, you should consider whether you should go to the law at all. The angst, uncertainty, stress, possible adverse publicity, risk of not collecting on judgments, possible appeal, and the time and energy consumed in a lawsuit are all non-pecuniary reasons to walk away from a small debt.

Every province maintains small claims courts where claims up to $50,000 can be launched and prosecuted without a lawyer. This is an effective option where the dispute is straightforward and you are likely to actually collect the judgment amount if successful...