(dissenting). In my opinion the rule permitting the assessment of reasonable costs for unreasonable allegations or denials is intended to *34cover bad faith pleading. I have so concluded not only because I believe that where access to the courts is involved an objective standard is essential for the sound administration of justice, but also because it appears that, when first promulgated, it was expressly stated the rule was intended to cover “bad faith” pleading.
Michigan is a fact-pleading State, and both the language and history of the rule indicate an intention to cover only underlying facts unreasonably pleaded rather than ultimate fact.
I.
GCR 1963, 111.6 [for full text, see majority opinion, page 28] first appeared substantially in its present form as rule No 17, § 10, Michigan Court Rules (1931).1 The 1931 rules were adopted on the basis of work done by a commission established pursuant to PA 1927, No 377. The commission’s final amended report contains the following explanation of that section:
“This section is new and is intended to discourage denials made in bad faith.”2
Thus, the provision before us was designed to discourage bad faith pleading, first as to denials only and later, by amendment effective in 1963,3 allegations as well as denials. The basic language is the
*35same and the gloss on the rule set forth in the report of the commission remains.
It also appears that while the format of the 1931 section was new, the concept was not entirely new. Sections 7 and 8 of rule 23, Michigan Circuit Court Rules (1916), provided the defendant shall pay to the plaintiff the reasonable expense incurred by the plaintiff in proving or preparing to prove the material allegations the defendant shall not in good faith have intended to controvert. It is this concept of penalizing denials not in good faith (circuit court rules of 1916) and bad faith denials (court rules of 1931) carried forward subsequently for both allegations and denials (general court rules of 1963) that is before us.
There are substantial policy reasons for limiting the rule’s application to bad faith pleading, as its history indicates it was intended to be limited. Countless lawsuits are started or defended on a subjective belief in their merits, rather than after an objective determination of reasonable or probable cause for entertaining such belief. Lawyer or litigant may properly rely on the discovery procedures designed to assist one in proving pleaded allegations or denials. A litigant is not expected to establish he has reason to believe he will be able to prove a fact before proceeding with discovery in respect to that fact.4 Nor may he be penalized with the cost of discovery or other proceedings because after exhausting discovery he is unable to establish a fact sought to be proved.
*36Unless the operative effect of GrCR 1963, 111.6 is limited to those situations where it was known at the time the fact was pleaded that it conld not he proved,5 the rule could he utilized to penalize any litigant who fails to prove any fact essential to his case. Lawsuits commenced and defended with a hope and a prayer have proved successful. Litigants have obtained evidence which they had no assurance they could obtain at the time they pleaded, or indeed any reasonable expectation of being able to obtain. As the result of vigorous preparation or happenstance, the truth came out, the fact was proven and a meritorious position vindicated. The majority would penalize those not so fortunate and permit a trial judge to impose the entire cost of the lawsuit on the unsuccessful litigant if, on the basis of failure to have produced evidence supporting a fact pleaded, the judge concludes the allegation or denial of that fact was “unreasonable.” Failure of proof will then become the basis for assessment of actual costs in the trial judge’s discretion as a matter of course, subject to our limited powers of review.
II.
The trial judge’s findings resolve6 into 2 basic propositions, (1) that some of the arguments advanced by petitioners were legally insufficient, i.e., *37those concerning allegedly erroneous orders, and (2) that there was a failure to offer any evidence the judge sought to be disqualified was prejudiced.
Surely, the order appealed from should be set aside to the extent the award is apportionable to the successful legal argument that petitioners’ allegations were legally insufficient, or to preparation to disprove such legally insufficient allegations. There can be no justification for awarding “reasonable expenses incurred in proving or preparing to prove or disprove such fact”, if the fact is insufficient as a matter of law, as then there is no need factually to disprove it. If it be said the successful counsel might or could not have known in advance the court would rule favorably on his claim the allegations were legally insufficient, then how can it properly be held — if successful counsel is in doubt as to the outcome — that the unsuccessful litigant made allegations which “ought not to have been” made or that were “unreasonable.”
The trial judge did not find the petitioners proceeded in bad faith. It appears from his findings *38that he concluded he was authorized to make an award because he had found petitioners failed to produce any evidence in support of their petition to disqualify. That should not be enough. Failure of proof is not uncommon. It would radically transform the opportunity to litigate meritorious cases if the unsuccessful litigant legitimately may fear that upon the conclusion of the trial the fact of failure of proof coupled with the trial judge’s subjective evaluation of the reasonablenes of such failure could, if such determination is adverse to the unsuccessful litigant, result in the assessment of all the expenses of the lawsuit against him.
Unless controlled by an objective standard, there is real danger the power to assess reasonable expenses could and would be employed ad hominem against unpopular lawyers or litigants and ad hoc to discourage unpopular complaints or defenses. If the standard is subjective, it might prove difficult to avoid focus, albeit not intentionally, on the attorneys or litigants involved and the trial judge’s general reaction to the case.
It is, I think, significant that while there are numerous rules and decisions concerning the power of appellate courts7 to tax costs where an appeal is brought in bad faith, little has been done in regard to the same problem at the trial level.8 Perhaps this is because of the difficulty of appraising bad faith at the trial level and the danger of unduly discouraging meritorious presentations.9
*39III.
The rule speaks of a fact alleged or denied and the expenses of “proving or preparing to prove or disprove such fact.” I think it apparent from the language and history of the rule that “fact” means underlying fact rather than ultimate fact.
Michigan is a fact-pleading State.10 A comparison of sections 7 and 8 of rule 23 of the circuit court rules (1916) shows that the distinction between the underlying fact and all the facts was then recognized.11 The concept carried forward from those rules to the 1931 rules and from the 1931 rules to the 1963 rules was that for bad faith pleading in respect to an underlying fact, the cost of proving or preparing to prove or disprove “such fact” and that fact alone could be assessed.
The trial judge and the majority read the rule as authorizing an award to the successful litigant of all reasonable costs actually incurred in the preparation and conduct of the entire trial, because of a failure to prove a particular fact alleged. There *40is nothing in GCR 1963, 111.6 which compels that conclusion. The rule’s history and language are in opposition.
I would define unreasonable pleading as bad faith pleading, and bad faith pleading as allegation or denial of a fact known to be false at the time pleaded. I would permit assessment of reasonable expenses only to the extent incurred in “proving or preparing to prove or disprove such fact.” (Emphasis supplied.)
The problem of providing representation to a circuit judge unjustly charged, as in this case, deserves attention, but its solution should not be achieved by a sweeping interpretation of GCR 1963, 111.6 which will so importantly affect many other cases.
I respectfully find it necessary to dissent.
“If it shall appear at the trial that any f aet denied by the pleading ought not to have been denied, and the same is proved or admitted at the trial, the actual and reasonable expense of proving or preparing to prove the same, ineluding a reasonable counsel fee for the time and attention devoted thereto, to be ascertained and summarily taxed at the trial, shall be paid by the party making such denial.” Buie No 17, § 10.
Michigan Court Eules Annotated, Eevision of 1931; University of Michigan Law School, The Legal Eeseareh Institute (1930), p 32.
The general court rules of 1963 were adopted December 1, 1961 effective January 1, 1963.
See committee note reprinted as annotation to Stat Ann, Rules, GCR 1963, 310 (concerning motions for production of documents and things) : “The inherent discretion of the court in granting orders is a sufficient safeguard to motions made in bad faith, or without the grounds of reasonable necessity.” (Emphasis supplied.) See, also, GOR 1963, 306.2, 307.4 and 309.5 for provisions concerning the protection of parties and witnesses against annoyance, undue expense, embarrassment, oppression, et cetera.
“Something more than a mere mistake of judgment is necessary to constitute bad faith — the phrase imports a dishonest purpose or a conscious doing of wrong. It may embrace either absence of probable cause for the proceeding, which is Tcnown to the litigant, or malice in bringing the suit for ulterior purposes.” (Emphasis supplied.) Deterring Unjustifiable Litigation by Imposing Substantial Costs, 44 111 LB 507, 519 (1949).
The trial judge’s findings in respect to the order now on appeal may be found in the majority opinion. The findings of the trial judge on the petition to disqualify, to the extent set forth in the appellee’s brief — the opinion of the court on the petition to disqualify not being part of the record on appeal herein — are as follows:
(a) “This record is barren of any statement in oi; qut of court by Judge Kashid indicating any bias or prejudice.”
*37(b) “Strangely enough, we have not one word of that sort in this ease. Nowhere do we find any quotation or any testimony of any statement by Judge Eashid in or out of eourt which indicates he had any friendship or prejudice for or against, bias for or against, any party in this litigation, only for the possible exception of Mr. List whom on one occasion he found to be guilty of contempt of eourt.”
(c) “There is nothing to show that he has in any way sinee that day continued his acquaintance with the Lewises any more than he has with any one of the hundreds and sometimes thousands of people that a prosecuting attorney crosses the path of in the performance of his duty. There is not the slightest evidence to show he knew them personally, was on friendly basis with them or had any close relationship with them. There is no showing of any bias or prejudice in their favor or any bias or prejudice against the plaintiffs who, as far as I know, and as far as has been brought to my attention, had no connection with the inquest.”
(d) “Now, for the reasons I have given, I find that there is absolutely no evidence of any prejudice or bias in fact on the part of Judge Eashid, either for or against the plaintiffs, either for or against the defendant. I further hold that the petition for disqualification cannot be based upon an order made in the course of judicial proceedings — the faet he may have made an erroneous order.”
7 MLP, Costs, §44; 5 Am Jur 2d, Appeal and Error, § 1024; 20 CJS, Costs, § 371 et seq.
Illinois provides for assessment of reasonable expenses, ineluding attorney fees, for “allegations and denials, made without reasonable cause and not in good faith, and found to be untrue.” Title 110, Civil Practice Act, § 41. Connecticut has a similar provision concerning “any allegation or denial made without reasonable cause and found untrue” with a limit of $10 on counsel fees for any one'offense. General Statutes of Connecticut 1958 Rev, Title 52, Chapter 898. § 52-99.
The American practice of not allowing actual costs, including at-. *39torney fees, to be taxed in favor of the successful litigant, its historical development, operation, exceptions and validity, are ably considered in Oh 8, MeCormick on Damages (1935). See, also, 25 CJS, Damages, § 50; 22 Am Jur 2d, Damages, § 165; Goodhart, Costs, 38 Y L J 849 (1929). Dor proposals that we adopt the English practice, see Kuenzel, The Attorney’s Dee: Why not a Cost of Litigation, 49 Iowa L Rev 75 (1963); Damages, Attorneys’ Dees as an Element in Michigan (1941), 5 U of Det L J 24; Use of Taxable Costs to Regulate the Conduct of Litigants, 53 Colum L Rev 78 (1935) ; Stoebuek, Counsel Dees Included in Costs: A Logical Development, 38 U of Colo L Rev 202 (1966).
Committee note, reprinted as annotation to Stat Ann, Rules, GCR 1963, 111.
A defendant who did not intend in good faith to controvert “every material allegation” in the declaration, was chargeable with the plaintiff’s reasonable expense incurred in proving or preparing to prove “all [i.e., those] matters which the defendant shall not in good faith have intended to deny.” (Section 7.) While a defendant who did not intend in good faith to take issue on “any material allegation” was chargeable with the plaintiff’s reasonable expense incurred in proving or preparing to prove “his [plaintiff’s] case,” GCR 1963, 111.6 permits assessment of the cost of proving or preparing to prove or disprove “such fact,” not “the ease.” (Emphasis supplied.)