slatter jA

10.50: Costs imposed on lawyer
14.5: Appeals only with permission

Case Summary

The Applicant, Kennedy, who was prior counsel for some of the Plaintiffs sought leave to appeal a Case Management Judge’s Order holding her personally liable for solicitor client Costs. The Case Management Judge had found the Application filed by Kennedy on behalf of her clients to be “unfounded, frivolous, dilatory or vexatious” and “a serious abuse of the Judicial System”.

Slatter J.A. noted that appeals from decisions which only relate to Costs require permission pursuant to Rule 14.5(1)(e). To obtain permission to appeal a Costs award, an Applicant must show 1) an arguable case which has sufficient merit to warrant review by a full panel of the Court of Appeal; 2) issues of importance to the parties and generally; 3) the Costs Appeal has practical utility; and 4) no delay in proceedings will be caused by the Costs Appeal.

Justice Slatter noted that appeals on the details of Costs awards are “rarely appropriate” but may be justified where the Costs award “raises more general issues, or issues of principle, or large sums are involved”. His Lordship stated that where an individual has been subject to an “out of the ordinary costs award” they will often have a legitimate basis for Appeal, and that where there is doubt, permission to Appeal should be granted.

Slatter J.A. noted that with respect to the element requiring a good arguable case, the underlying consideration is whether the issues involved are important enough that a full panel of the Court should hear and determine the Appeal on its merits. This element does not warrant consideration of whether the Appeal is likely to succeed. Justice Slatter observed that there is no direct Appellate authority concerning Rule 10.50, and that issues concerning its application are important both to the Applicant and to the legal community more generally. Justice Slatter also found that the sums involved were quite large. Permission to Appeal was granted.

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