This was a Decision regarding Costs following a Trial. The Court confirmed that Costs are awarded in the Court’s discretion, but the exercise of that discretion is guided by Rules 10.29(1), 10.31 and 10.33.

Justice Bercov highlighted that in determining Costs under Rule 10.33, the Court may also consider the conduct of the parties and, in particular, whether the parties’ conduct tended to shorten the Action. Her Ladyship found that in this case there were several examples of conduct by the Defendants that did not shorten the Action. For example, the Defendants maintained that the Plaintiffs were in default under the agreement for leased equipment, despite overwhelming evidence that they were not in default, and that the Defendants conspired with the lessor to wrongfully seize and sell the leased equipment. Further, the Defendants brought two Applications returnable on the day of Trial: a Security for Costs Application and an Application to strike the Action. The Defendants argued that these Motions should be heard before the Trial. No explanation was provided for why the Applications were brought at the last minute.

Ultimately, the Court found that considering all of the issues, the complexity of the issues, the time spent on those issues, the Defendants’ conduct in failing to concede matters that should have been conceded, and bringing last minute Applications that were not successful, that the Plaintiffs were entitled to Costs under Column 1 of Schedule C.