CPC REPEAT PROJECT 2018 (ON AWARDING OF COSTS: PRINCIPLES AND

PRACTICE)

Submitted by Devanjali Banerjee, 215097, Third Year BALLB for the Monsoon Semester
of 2018.

NOTE: All the mentioned quotations (annotated or otherwise) are from The Merchant of Venice
and are available from The Riverside Shakespeare, ed. G. Blakemore Evans. References to all
the scenes (Act 1, scene 1 onwards) will only be cited by their respective line number.

BRIEF INTRODUCTION AND RESEARCH OBJECTIVES

"(The) annus," as Auden said, "is not mirabilis."1 Currently, the very subject of costs is of great
relevance in today’s world of frivolous civil litigations as well as other legitimate civil
procedural actions (As related to the Civil Procedure Code, 1908 [hereinafter referred to as “the
Code”]) and suits. However, it is definitely not the ‘happy year’ for efficiency in civil procedure
on any level. The Indian scenario is riddled with issues relating to too meagre costs or no costs at
all or exemplary costs with nothing to show as for an explanation in order to understand the
rationale of award. It is worth quoting Justice Bowen in Copper vs. Smith (1884). He said: “I
have found in my experience that there is one panacea which heals every sore in litigation and
that is costs”.

Over in the United States of America, things are no different. “Ever since the Federal Rules of
Civil Procedure were adopted in 1938, practitioners have found ways to use—or abuse— the
discovery rules to their advantage, increasing the cost of litigation for their opponents. After
four decades of complaints about the discovery system, the Federal Judicial Center (―FJC)
undertook an investigation of the types and frequency of discovery abuse in civil litigation. 2 The
FJC elicited feedback from hundreds of attorneys, ultimately publishing its 1980 study
confirming the existence of discovery abuse.3 Among the major problems identified by the
participants were resistance to discovery, over-discovery, and misuse of discovery tools.”4
1
Sovereignty and Human Rights in Contemporary International Law W. Michael Reisman Yale Law School.
2
Joseph L. Ebersole & Barlow Burke, Fed. Judicial Ctr., Discovery Problems in Civil Cases 1–2 (1980).
3
See id. at 1–5.
4
See id. at 10–29. In a 1979 study of Chicago-area litigators conducted by then-Professor Wayne D. Brazil (the
―Brazil study‖), 100% of the respondents noted that ―evasive or incomplete responses‖ had hindered their
discovery efforts at some point. See Wayne D. Brazil, Civil Discovery: Lawyers’. Views of Its Effectiveness, Its
Principal Problems and Abuses, 1980 Am. B.Found. Res. J. 787, 835 (1980) [Hereinafter Brazil I].
This project will be written in a hypothetical universe which combines the current Indian legal
framework plus functioning of the judicial courts system, as well as the fact scenario that is the
premise of the comedy5 written by William Shakespeare. In other words, in order to
contextualize, it is relevant to refer to the facts of the case which is the same as the premise
which is a foundational stone of the plot of The Merchant of Venice (hereinafter referred to as
“the Merchant”).

In this, Bassanio, a high-born Venetian Christian, is always in need of money to fuel his
flamboyant lifestyle. Hence, with his friend Antonio as a guarantor6, he enters into a contract
with a miserly Jew called Shylock wherein Shylock gives as loan to Bassanio the sum of three
thousand ducats sans any interest for the period of three months. In this arrangement, Antonio
would be backing Bassanio to guarantee the loan. One cruel stipulation of this contractual loan
agreement is that Shylock is entitled to get a pound of Antonio’s flesh as damages in case he
cannot repay the loan in the given time. In a fit of draconian rage fuelled by his abuse at the
hands of Christians in general and Christian customers, Shylock coerces Antonio to commit to
liquidated damages in the form of one pound of flesh (to be extracted from a spot closest to his
heart). Unfortunately, as with Antonio’s foreshadowing of his ships’ destruction in Act I Scene I,
we soon learn this truly has come to pass and with this event of Antonio’s mortgaged or
leveraged ships being destroyed, we wonder what will unfold next.

Hence, the aim or object of the paper is to formulate both Shylock’s as well as both Antonio and
Bassanio’s legal options and avenues available as under the relevant Indian law as thought they
were all Indian citizens subject to and liable under Indian law. Moreover, as with the end of a
litigation in civil procedure, it is necessary for the costs to follow the event and in general, for the
losing side to pay the other party the costs in terms of the Court Fees Act or any other special
legislation, whichever is applicable.
Hence, what sort of principle should underlie the theory of awarding costs to either Shylock or
Bassanio and Antonio is what shall be investigated into with the help of the factual matrix and
Indian legal framework-based relief. This is also with an objective to demonstrate that equity in
certain situations when the other outcome is outrageous, bad in law or opposed to public policy

5
Shakespeare, William, 1564-1616. The Merchant of Venice. Harlow, Essex, England: Longman, 1994. Print.
6
Act 1, Scene 3, Page 7, the Merchant of Venice, The Riverside Shakespeare, ed. G. Blakemore Evans.
is the most optimum option available for choice. Hence, in this regard I would then also touch
upon the various theories of awarding costs as well as what happens in practice in India.

COMPARITIVE JUDICIAL PROVISIONS

CANADA

While the Indian costs system is such, it is also pertinent to observe other common law
systems to understand their problems in our terms. “The costs system has taken on a
predominant role in affecting the choices made by civil litigants in Canada. Modelled on the
English system, the Canadian fee shifting regime requires an unsuccessful litigant to pay a
portion of the successful party’s costs. While originally put in place at a time when litigation
costs were typically in reasonable proportion to the amounts at stake, the cost to litigate
today can often exceed the damages sought. A myriad of factors enter into the calculation of
costs, making it very difficult for lawyers and their clients to assess the risks of litigation.
The author argues that this unpredictability deters the “everyday” Canadian litigant—as
distinct from the solvent corporate litigant, the insured defendant or the judgment-proof,
low-income litigant—from entering, or remaining in, the civil justice system.”7
Even in Canada, the responsibility to pay for costs in civil litigation has become an onerous
duty for whoever has to undertake it and the system suffers as a whole. “Under the current
fee shifting regime, an unsuccessful litigant must pay not only his own legal costs but also a
proportion of the successful litigant’s legal fees.8” This is very similar to the Indian
conception of the ‘Loser Pays’ principles. While the system is built in this particular manner
in order to meet the countervailing objectives of facilitation of access to civil procedural
litigation by means of incentivizing successful litigants in terms of their indemnification in
case of their winning a particular case, it is still a system riddled with inherent systemic
issues that need to be addressed.
The Canadian Apex Court has noted in British Columbia (Minister of Forests) v Okanagan
Indian Band9, at para 26, that Canada’s costs system is designed to act as a “disincentive to

7
The Cost of Costs: The Unfortunate Deterrence of Everyday Civil Litigation in Canada
Erik S. Knutsen, Assistant Professor, Faculty of Law, Queen‖s University, Kingston, Ontario, Canada (LL.M.
(Harvard), of the Ontario Bar).
8
Ibid.
9
[2003] 3 SCR 371 [Okanagan].
 those who might be tempted to harass others with meritless claims”10. In addition to this
issue, it was also highlighted that the compensatory nature of the cost system is used in order
to “make the legal system more accessible to litigants who seek to vindicate a legally sound
position11”. The British Columbia Court of Appeal in Catalyst Paper Corp v Companhia de
12
Navegação Norsul, held that rules on costs ought to have a “winnowing function” in
litigation to discourage “doubtful cases or defenses”13.
There are three main costs-related variables that work together to influence the economics
of civil litigation under the Canadian fee shifting regime. The first is the actual cost to the
client of paying his own lawyer (“Own Lawyer” costs). The second is the ratio or the real
proportion of the victorious litigant’s legal fees that must be paid by the losing party
(“Adverse Party” costs). The third is the costs penalty a litigant may have to pay for failing to
accept a reasonable settlement offer made by the opposing party (“Settlement” costs).
Adverse Party costs and Settlement costs are typically set by the court at the conclusion of a
proceeding.
There is also a grave concern that hourly billing encourages inefficient and unethical conduct
on the part of lawyers, because there is no necessary link between the time spent by the
lawyer and the results for the client. Standard homeowners, automobile, and commercial
liability insurance policies in Canada all provide indemnification for Own Lawyer costs in a
litigation defense (including Adverse Party and Settlement costs) 14. The insurer defends the
lawsuit on behalf of the policyholder, in the policyholder’s name. The insurer runs the
litigation defense, makes the litigation decisions, and pays the damages and cost
consequences, if any. Thus, for the exchange of an insurance premium, most defendants
The capacity of fee shifting to improve access to the civil litigation system may have run out.
Courts are being prompted to work around the fee shifting regime by using other funding
methods to improve access, from cost premiums to interim cost awards to pro bono costs. If
fee shifting is indeed to be used to further access to justice, it must be modified to keep it
from negatively affecting decisions to file or settle a claim. A hybrid system offers a

10
Ibid.
11
Ibid.
12
2009 BCCA 16 at para 16, 307 DLR 285.
13
Ibid.
14
C.f. e.g. Gordon G Hilliker, Liability Insurance Law in Canada, 4th ed (Markham, Ont: Butterworths, 2006).
 promising solution. It would specify one-way, pro-plaintiff fee shifting as the default rule,
which would apply whenever the defendant is an insulated party. In other cases, the
American fee shifting rule should apply. Settlement costs should consist of a 10% uplift in
the final damages that are awarded or agreed upon. By focusing on the financial means of the
litigants, this hybrid approach could improve access to justice for everyday litigants.

AMERICA
“In 2009, the Ninth Circuit Court of Appeals wrote the concluding chapter in the Exxon
Valdez litigation, which had spanned more than twenty years from the date of the oil spill on
March 24, 1989. The concluding chapter related to appellate costs. Over the course of the
nearly two decades of appellate litigation, Exxon paid approximately $70 million in costs,
the majority of which went to secure a bond on the original $5 billion in punitive damages.
The Ninth Circuit had to determine whether the plaintiffs should pay any of these costs. The
U.S. Supreme Court was silent on the issue, and the applicable Federal Rule of Appellate
Procedure—Rule 39(a)(4)—merely directed the judges to award costs "only as the court
orders." However, in cases wherein the use of the said rule would prove inequitable, courts
should consider a variety of factors including the following: (1) which party prevailed, (2)
the public interest, (3) the parties' ability to pay, (4) the parties' arguments and positions
throughout the litigation, (5) attempts to settle, (6) the reasonableness of the costs, (7) the
amount of costs, (8) federal
Statutes in related areas, (9) related state-court rules, and (10) the interests of justice.”15

Now, “Ever since the Federal Rules of Civil Procedure were adopted in 1938, practitioners
have found ways to use—or abuse— the discovery rules to their advantage, increasing the
cost of litigation for their opponents. After four decades of complaints about the discovery
system, the Federal Judicial Center (―FJC‖) undertook an investigation of the types and
frequency of discovery abuse in civil litigation. 16 The FJC elicited feedback from hundreds of
attorneys, ultimately publishing its 1980 study confirming the existence of discovery abuse. 17

15
Berch, J. (2010). The costs of litigation: A proposal to amend federal rule of appellate procedure 39(a)(4). 83. 103-
145.
16
Joseph L. Ebersole & Barlow Burke, Fed. Judicial Ctr., Discovery Problems in Civil Cases 1–2 (1980).
17
See id. at 1–5.
 Among the major problems identified by the participants were resistance to discovery, over-
discovery, and misuse of discovery tools.”18 (Over three decades later, the problems remain.)
The simple and seemingly obvious solution, then, is stricter enforcement of the discovery
sanctions available under the Federal Rules. Despite the practitioners ‘continual call for
such action academics and commentators keep pushing for extensive changes to the Rules.19
Hence, we see in totality, a lot of problems exist as to costs regime, the world over. Now let
us look to suggestions and reforms as by the 240 th Law Commission Report
recommendations.
LAW COMMISSION REPORT (240TH ON COSTS OF CIVIL LITIGATION)

The first relevant case here is Ashok Kumar Mittal vs. Ram Kumar Gupta20 . Secondly, it is the
case of Vinod Seth Vs. Devinder Bajaj21 . In yet another judgment delivered recently 22 , the
Supreme Court took cognisance of different suggestions placed before the court by the Law
Commission and Sri Arun Mohan (Sr. Advocate), and and pushed for changes in the relevant
provisions including the rules of various High Courts.

This is what the Supreme Court said in Ashok Kumar Mittal’s case: -

“… The present system of levying meagre costs in civil matters (or no costs in some matters), no
doubt, is wholly unsatisfactory and does not act as a deterrent to vexatious or luxury litigation
borne out of ego or greed, or resorted to as a “buying-time” tactic. More realistic approach
relating to costs may be the need of the hour. Whether we should adopt suitably, the western
models of awarding actual and more realistic costs is a matter that requires to be debated and
should engage the urgent attention of the Law Commission of India.”23

Hence, again the Western episteme of costs such as equity or good conscience seem to have been
sidelined in favor of statutory and defined principles. Similarly homogenous views were echoed

18
See id. at 10–29. In a 1979 study of Chicago-area litigators conducted by then-Professor Wayne D. Brazil (the
Brazil study), 100% of the respondents noted that ―evasive or incomplete responses had hindered their discovery
efforts at some point.
See Wayne D. Brazil, Civil Discovery: Lawyers’ Views of Its Effectiveness, Its Principal Problems and Abuses, 1980
AM. B. FOUND. RES. J. 787, 835 (1980)
19
42 University of Memphis Law Review 109 (2011).
20
(2009) 2 SCC 656
21
(2010) 8 SCC 1
22
Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trust [JT 2011 (12) SC 435]
23
(2009) 2 SCC 656
in Vinod Seth’s case. The Supreme Court observed as under after discussing various aspects
relating to costs: “The lack of appropriate provisions relating to costs has resulted in a steady
increase in malicious, vexatious, false, frivolous and speculative suits, apart from rendering
Section 89 of the Code ineffective.” 24

The basic commonality present in these cases is the repetition of three main principles:

(i) costs should ordinarily follow the event;

(ii) realistic costs ought to be awarded keeping in view the ever increasing litigation
expenses; and
(iii) The cost should serve the purpose of curbing frivolous and vexatious litigation.

The MLRC (Manitoba Law Reform Commission), in one of its Report on “Costs Awards in
Civil Litigation” sets out six broad goals – not all mutually exclusive and some that were – that
costs rules should keep as their objectives. The first goal is indemnification: victorious litigants
ought to be at least indemnified (even if nominal amounts) as against their legal costs. The
second is deterrence: potential litigants should be incentivized to think before engaging within
the civil justice system. Thirdly, make costs rules should be easy to understand and simple to
apply. The fourth is to incentivize early settlement of disputes, and the fifth is to facilitate access
to justice. The sixth and final goal the Commission considered relevant is flexibility: the rules
must permit judges to ensure that justice is done in particular cases. This again is where equity
and good conscience come into the picture.

The awarding of costs is essentially not considered to be a penalization but a method in

order to reimburse the other (victorious) party the expenses of litigation. However, the costs
imposed on a party for indulging in frivolous or vexatious litigation stand on a different footing.
The universal rule is that that the losing party would be ordered to pay the costs to the successful
party. Thus, the rule has been coined to “costs follows the event”, which means that the court
will usually order that the loser of the litigation pays the winner’s costs. However, the court has
the discretion or flexibility to award or not to award the costs at all. As stated in Halsbury’s Laws
of England, “This discretion must be exercised judicially; it must not be exercised arbitrarily but
in accordance with reason and justice”25.

24
Supra at note 33.
25
Para 15, Vol. 10, 4th Edn. (Reissue)
THE CODE ITSELF

It is Part 44 of the Civil Procedure Rules (CPR) that contains general or universal rules about
costs and entitlement to costs. The rules are additionally supplemented by practice directions.
However, part 44 does not apply to the assessment of costs to the extent different provisions
exist, for eg, Access to Justice Act, 1999 and the Legal Aid Act, 1988.

Lord Scott observed in Four -v- Le Roux26 that “the difference between costs at the standard rate
and costs on an indemnity basis is, according to the language of the relevant rules not very
great.” Mr. Riyaz Jariwalla (Solicitor) explains: “Indemnity costs are penal in nature as they can
be ordered to compensate one party following another party’s wrongful conduct of proceedings.
However, that compensation must never offend the spirit of the indemnity principle. The party
recovering costs must never recover more than they have actually spent. It should be recognized
that 100% recovery of costs is rare but the indemnity basis of assessment will take a party
nearer that percentage than the standard basis.”

In the case of Ashok Kumar Mittal (supra), the Supreme Court referred to two competing
views, to cite,

“the provisions in Sections 35 and 35A CPC do not affect the wide discretion vested in the High
Court in exercise of its inherent power to award costs in the interests of justice; and (ii) though
award of costs is within the discretion of the Court, it is subject to such conditions and
limitations as may be prescribed and subject to the provisions of any law in force and therefore,
inherent powers contrary to the specific provisions of the Code viz. Section 35 and 35A etc.,
cannot be exercised. This latter view was considered to be a “more sound view”. Having said
so, the following pertinent observations were made by the learned Judges:”27

The soundest view in this context was considered by the Supreme Court in the latest case of
Sanjeev Kumar Jain28. Referring to the prefacing phrase in section 35 of the Code– “subject to
…..”, the Court laid down that (“if there are any conditions or limitations prescribed in the

26
[2007] UKHL 1.
27
(2009) 2 SCC 656.
28
Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trust [JT 2011 (12) SC 435]
Code or in any Rules, the Court, obviously, cannot ignore them in awarding costs”29.)

Further, regarding Sections 35A and 35B of the Code, the Supreme Court made the following
observations in Vinod Seth’s case30: “The provision relating to compensatory costs (section 35A
of the Code) in respect of false or vexatious claims or defences has become virtually infructuous
and ineffective, on account of inflation. Under the said Section, award of compensatory costs
inflation and vexatious litigation, is subject to a ceiling of Rs. 3,000/-. This requires a realistic
revision keeping in view the observations in Salem Advocate Bar Association (II) (supra).
Section 35B providing for costs for causing delay is seldom invoked. It should be regularly
employed, to reduce delay.”31
SECTION 35 (“COSTS”)

(NOTES: The other provisions shall not be dealt with due to paucity of words)

Costs as under S.35 is aimed towards reimbursing reasonable litigation expenses to the victorious
party. Now, Section 35 lays down two principles –

(1) The costs of an incident to all suits shall be in terms of the discretion of the court. The court
shall have supremacy to decide by whom or out of property and to what extent and nature such
costs are to be given.

(2) Where it is directed by the court that the costs shall NOT follow the event for any reason,
such specific reasons must be recorded by the court.

Section 35(1) provides that “subject to such conditions and limitations as may be prescribed and
to the provisions of any law for the time being in force, the costs of and incident to all suits shall
be in the discretion of the Court”. The sub-section further provides that the Court shall have full
powers to determine by whom or out of what property and to what extent such costs are to be
paid. The Supreme Court, in Salem Advocate Bar Association vs. Union of India32noticed that
“unfortunately, it has become a practice to direct parties to bear their own costs” and that
wherever costs are awarded, ordinarily the same are not realistic and are nominal.

29
Ibid.
30
Vinod Seth vs. Devinder Bajaj 2010 (8) SCC 1.
31
Ibid.
32
2005 6 SCC 344.
While referring to Section 35(2), the Court expressed the view that “when section 35(2) provides
for costs to follow the event, it is implicit that the costs have to be those which are reasonably
incurred by a successful party…[and that] costs have to be actual reasonable costs including
cost of the time spent by the successful party, the transportation and lodging if any, or any other
incidental costs besides the payment of court fee, lawyer’s fee, typing and other costs in relation
to the litigation.

SHAKESPEARAN CONTEXT

The obvious question of law (and of situational fact) is the very need and object of mercy and
equity in deciding questions which may be governed by a simple statute or constitutional or even
contractual or tortuous provisions, and about the conflicts between law, equity and justice.
Awarding of costs while generally is a commission of active application of the statute (the
relevant Court fees Act) to the present factual matrix which finally leads to one party paying the
other costs for the use of the court resources. It is generally the losing side that pays the cost to
the victorious side- a status quo that is both celebrated and despised by different sets of groups
and individuals.
Now, in a celebrated speech in one of the last scenes of the Merchant, Portia, who is disguised as
a male lawyer who is likened to the Biblical David, argues for the side of Bassanio and Antonio.
She argues and pleads with Shylock (representing himself) that he must show some
consideration. Immediately Shylock, a Jew who has suffered racism, wonders why he must show
mercy at all. It is then that Portia pontificates on what is the true nature of mercy. It is this speech
which in the humble opinion of the author, is the foundation of that common law conception of
equity and good conscience. Scholars too echo this view 33. In case of the Merchant, the
universality of the work's legal context to sociopolitical transliteration and interpretation is
formally confirmed by no less a politico-legal authority than that of the Lord Chancellor
Ellesmere, who in an 16th century-old judicial dispute on the issue of the power of King James to
legislate economic policy without the aid and advice of Parliament advised his fellow judges "to
maintain the power and prerogative of the King; and in cases in which there is no authority and
precedent, to leave it to the King to order it according to his wisdom and the good of his

33
"The Quality of Mercy" : Law, Equity and Ideology in "The Merchant of Venice" Author(s): STEPHEN A.
COHEN Mosaic: An Interdisciplinary Critical Journal, Vol. 27, No. 4, ADVERSARIA: Literature and Law
(December 1994), pp. 35-54
subjects, for otherwise the King would be no more than the Duke of Venice" (qtd. in Andrews
41).
Shylock’s case is based on three major claims. Firstly, the (res ipsa loquitor) or the fact of the
self-evident facts as to the law’s application to the instant case; secondly, the supreme power of
law over all other powers, personal or governmental and thirdly, the importance of said
supremacy to the very foundations of the state itself. Portia counters the res ipsa loquitor based
argument of Shylock’s and touches on the severity and cruelty of the damages extracted. She
wanted to essentially, “mitigate the justice of thy plea”34. Hence, there is a reference to a kind of
justice that is not written in the statute books as such but exists in the minds of society as a whole
or even in a formal sense.
“The principle that Portia applies in reaching her verdict is not the mitigation of the letter of the
law by its spirit, but the equally venerable equitable doctrine which holds that equity may
mitigate the unjust results of the law's necessary generality by taking into account the aspects of
a specific case of which the law takes no notice.” The influence of the Western episteme of
ideologies is very prevalent in this conception of the principle of equity. “…This conception of
equity is traceable to Aristotle's Ethics, in which he argues that "all law is universal but about
some things it is not possible to make a universal statement which shall be correct....this is the
nature of the equitable, a correction of law where it is defective owing to its universality" (133;
bk. 5).”35
It is this theory of equity that was at the heart of the Crown’s claim to power and or legal
supremacy. “…for even if superior knowledge of both the letter and the spirit of the common law
must be conceded to the common-law judges, the individualized requirements of justice were the
province of conscience: "the examination of the case by circumstances...doth necessarily
appertayne to the high courte of Chauncery...by an Equity that is drawne from the only
conscience of the Lord Chauncellor" (Hake 120)36.
The propositions in Portia's judgment regarding the blood spillage and extraction of a finite
amount of flesh underline the cruel exactitudes not included from the generality of common law
even as there is an effort to correct the injustices produced by said lack of inclusion. Neither the
letter nor the spirit of the law make any allowances for adhesion or standard form agreements

34
Line 203.
35
Supra at note 10.
36
Supra at note 10.
like Shylock's; it is left to the likes of Davidian Portia and equity to reduce the results of law's
generality by applying the facts and circumstances of the case at hand to the touchstone of good
conscience and thus finding the legal loopholes in the requirements of the law in order to satisfy
those of justice.
Now, because Portia’s equitable reading down of the statute has led to the lack of the shedding of
blood (especially Christian blood), Shylock is enraged. Shylock however is then accused of
attempt to murder and thus subject under criminal law when the dispute was a civil litigation.
The very societal basis of Shylock’s problematic position is his position under the law that posits
him as an alien while his victim was a good Christian Venetian man. “…moreover, in late 16th-
century England all felonies, including attempted murder, were punishable by death and loss of
property no matter who the perpetrator37.There is thus no dramatic or historical justification for
a law specifically targeting aliens except to emphasize the link between Shylock's social status
and his fate forged by the power of the law to discriminate between—and against—social groups
or classes: having resolutely maintained his status as cultural outsider, he now finds himself
trapped by it. Punishing Shylock's abuse of the common law with a statute that explicitly
discriminates against such "strangers" answers the economic arguments of the rising class by
implying that despite its potentially deleterious effect on commerce a certain amount of
regulation is necessary for the security and moral order of the state. 38”
The reestablishment of the legal authority of the ruling class is complete when the statute places
discretionary judicial power directly in the hands of the monarch: "the offender's life lies in the
mercy / Of the Duke only"39.Stripped of the common law's protection, Shylock is subject to
Portia's earlier threat: his failure to grant mercy to Antonio puts him at the mercy of the Duke.
That this mercy is not Portia's equitable mercy but instead the clemency which was the Crown's
prerogative in criminal cases (as indicated by the Duke's use of the word "pardon" [369]) merely
confirms the sociopolitical complicity of the two juristic principles.40
Now, having said that, let us contrast this with the facts of an actual. It was in R.K. Chadha v.
Dr. A.K. Gupta, III41, that it was held by the Haryana S. Commission that damages and

37
(Auden 228; Keeton 146).
38
Supra at note 10.
39
Lines (355-56).
40
Ibid.
41
(1993) CPJ 1398.
compensations can only be awarded in cases of ‘direct and proximate loss42’, and not for cases of
any imaginary result or consequence, however remote ,which may follow. In the current fact
scenario, the patient filed a complaint on a purely legal fictious ground that had he died a sudden
death due to surgery related issues performed by an expert doctor, would there or would there
not have been loss with respect to promotion, emoluments and pensionary benefits for the next
two decades.43
CONCLUSION

“Finally, the trial concludes with a further demonstration of the coercive power granted the
Crown by the supremacy of equity that Portia intimates in the "quality of mercy" speech, as the
Duke requires Shylock's acquiescence to Antonio's terms, "or else I do recant / The pardon that
I late pronounced here"44. Legally at the mercy of his enemies, Shylock can only accede to
Portia's ironic query, "Art thou contented, Jew?"45” “…This taunting valediction, while
reemphasizing the "mercy" granted Shylock in sparing his life, at the same time underlines the
contingency of that mercy, suggesting how easily his fate could have been that which Gratiano
(another minor character in the Merchant) prefers. That it was not is due less to the principles of
equity than to the dramatic and ideological appropriateness of a punishment befitting Shylock's
social and economic crime. Seen from the dual perspective of legal and political history, the
threat posed by Shylock to the Venetian social order is fundamentally the same threat that Lord
Chancellor Ellesmere recognized nearly twenty years later in what was by then one in a growing
number of legal challenges to the Crown's sociopolitical hegemony.””. 46 Hence we see the
growing importance of equity even in the common law court in terms of awarding of costs in
civil litigation.

42
Ibid.
43
Medical Negligence and Legal Remedies - 8 - Digest of Important Cases Indian Cases In Manupatra Database.
44
Lines (391-92).
45
Line (393).
46
Supra at note 10.