woolley j

4.29: Costs consequences of formal offer to settle
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

Two groups of the several Defendants were separately represented, and were wholly successful in defending the Plaintiff’s claim. Each of the two Defendant groups requested enhanced Costs based on the litigation misconduct of the Plaintiff, as well as double Costs for steps taken after service of a Formal Offer.

The Court first acknowledged that Rule 10.29 entitles a successful party to Costs, subject to the Court’s general discretion reserved under Rule 10.31, having regard to the factors set out in Rule 10.33. Justice Woolley noted that while reliance on Schedule C accomplishes the purposes of Costs awards, recent decisions have factored into Costs analyses the reality that Schedule C is grossly out of date.

In considering the Defendants’ request for enhanced Costs, the Court observed that the Plaintiff’s claim was meritless, and yet the Plaintiff was obstinate in the prosecution of its claim. This included a refusal to drop a significant, but clearly meritless, portion of the claim until after the start of Trial. The Defendants were awarded double Schedule C Costs at the appropriate column for the entire conduct of the litigation.

Straightforward application of Rule 4.29 directed that the Defendants received double Costs for all steps following their Formal Offers, which amounted to quadruple Costs at the appropriate column of Schedule C for steps taken subsequent to those Offers. These Costs were awarded to both groups of Defendants, as their interests were not necessarily aligned and the separate retainer of counsel was reasonable.

The Defendants’ claim for Costs was not, however, wholly successful. Certain specific Costs were found to be unreasonably claimed, and as such, the Court either rejected them outright or rejected them provisionally, pending further support being provided to the satisfaction of an Assessment Officer. Given the mixed success of the Costs Application, the parties were to bear their own Costs of preparing submissions.

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