Alan K. Henderson's Weblog

[A] rule regarding assessment of attorneys' fees arising out of litigation. The English Rule provides that the party who loses in court pays the other party's attorney's fees. The English Rule contrasts with the American Rule, under which each party is generally responsible to pay its own attorneys' fees, unless a statute or contract provides for that assessment. The rationale for the English Rule is that a litigant (whether bringing a claim or defending a claim) is entitled to legal representation and, if successful, should not be left out of pocket by reason of his own legal fees. It should be borne in mind that in virtually all English civil litigation damages are merely compensatory.

Once upon a time the knightly castes of Europe would go out to war in their heavy armor. Foot soldiers might get slaughtered, but no knight ever died. Occasionally, one would be captured by the other side and ransomed back — there was a special tax on the peasants to raise the money. Because these prisoners would yield so much money and because the captors might be prisoners some day, prisoners were treated very well.

As you can imagine, these people would use any excuse to go to war. After all, only footsoldiers got killed.

What the English did to the French soldiers at Crecy and Poitiers had a chilling effect, too. It meant that the knights were actually at risk too. Trust me: it made things safer for peasants.

That’s why I am in favor of Loser Pays.