ADAMS v ADAMS, 2011 ABQB 812
4.24: Formal offers to settle
4.25: Acceptance of formal offer to settle
4.26: If costs are not dealt with in formal offer to settle
4.27: Status of formal offer to settle and acceptance
4.28: Confidentiality of formal offer to settle
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
This case dealt with the Costs consequences of a family Trial. The Defendant contended that, pursuant to Rule 10.29, a party must “succeed entirely” in order to be entitled to Costs. Referring to case law that predates the new Rules, the Court determined that “a party that is largely or substantially successful can successfully claim costs”. Costs in matrimonial Actions should not be treated any differently than in other litigation. This is true with respect to matrimonial Actions involving division of property, support and custody.
With respect to Rule 10.31, on Court-Ordered Costs awards, the Court stated that the “unsuccessful party may have to pay the reasonable costs of experts’ reports”. Citing the Alberta Court of Appeal in Seidel v Kerr, 2004 ABCA 157, the Court elaborated that “the primary factor in allowing expert witness costs is whether, at the time it was incurred, the expenditure was reasonable”.
Rule 10.33(2)(g) was also considered. This Rule allows the Court to consider misconduct when making a Costs award. Her Ladyship noted that “courts have often visited heavy costs on parties making serious allegations of improprieties which are not proven”. With reference to when it may be appropriate to make a Costs award directly against counsel, it was noted that the “conduct of the barrister must demonstrate or approach bad faith, or deliberate misconduct, or patently unjustified actions, although a formal finding of contempt is not needed”.
With respect to Rules 4.24 to 4.29, Erb J. stated that “[t]he law is clear that proposals set forth in an offer must be unequivocal”. In addition, the Court noted, citing Laframboise v Billett (1991), 81 Alta LR (2d) 285 (QB), that the consequences of the Rules as to Costs are punitive and require “a very high degree of certainty and exactness”. It was decided that the Formal Offer submitted by the Plaintiff was a “genuine compromise”, offered with the intention of bringing litigation to a close and that the minor typographical errors were of no import. The Plaintiff was awarded double Costs from the date of the Formal Offer. Citing Purich v Purich, 1999 ABQB 212, the Court noted that, in “the absence of exceptional circumstances, a court should not hesitate to award appropriate costs even if the result of the costs award would be to deprive a litigant of the financial benefit of the substantive litigation”.View CanLII Details