10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

During the course of this Action, Kent J., as Case Management Justice, heard a number of Interlocutory Motions, but declined to address the issue of Costs on each of these Applications until guidelines were set into place to manage this complex litigation. Kent J. noted that although the new Rules of Court “do not change the principles that are applicable to a determination of the appropriate award of costs”, they do require the Court to consider certain matters in more detail than the former Rules. The Court acknowledged that the general rule regarding Costs remains that the successful party is entitled to Costs (Rule 10.29) and also noted that Costs remain in the Court’s discretion (Rule 10.29(1)(a)). The Court then considered Rules 10.31 and 10.33 which establish various matters that the Court may take into account when awarding Costs, including “the degree of success, the importance of the issue, the complexity of the action, the conduct of any party, and whether the application was unnecessary, improper or a mistake”. Kent J.’s decision suggests that the provision of costs and the analysis the Court must engage in prior to awarding Costs has not been substantially changed by the Rules, however, the new Rules may require the Court to engage in a more detailed analysis, where such an analysis is warranted.

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