slatter, o'ferrall and wakeling jja

14.88: Cost awards
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiffs sought to recover damages for a failed investment. Three of the Defendants entered into a Pierringer settlement with the Plaintiffs, and the Action against them was accordingly dismissed on the first day of Trial. Certain other Defendants were ultimately found liable at Trial, two of whom subsequently paid the Judgment owed by them. The remaining liable Defendants filed Appeals. Two of the Appeals were dismissed, and one was successful.

Upon Application for a ruling on the Cost consequences of the three Appeals, the Court first noted the presumption in Rule 14.88 that a successful party is entitled to Costs of an Appeal. As against the unsuccessful Appellants, the Plaintiffs were entitled to Costs of the Appeals. The Court noted that generally the scale of Costs on Appeal is the same scale of Costs as applied at Trial; however, in this case, the Plaintiffs had received settlement amounts and Judgment payments from some of the Defendants, which reduced the quantum in dispute on Appeal, and lowered the appropriate Schedule C column.

The successful Appellant was awarded Costs of the Appeal against the Plaintiff. Moreover, the Costs award following Trial was set aside as against the successful Appellant, and instead Costs of Trial were ordered payable to the successful Appellant by the Plaintiff. The Court moderated this Costs award noting that the Appellant, albeit successful, was sufficiently involved in the failed investment that participation in the Plaintiff’s Action was inevitable.

The successful Appellant had submitted two settlement offers in the course of litigation. In reviewing the effect of those two settlement offers, the Court found that the earlier offer had been unreasonable, and declined to recognize an impact on Costs. However, the second, more reasonable settlement proposal did move the Court to award double Costs for actions taken subsequent to that offer.

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