14.5: Appeals only with permission

Case Summary

This was an Application by the Defendants, brought pursuant to Rule 14.5(1)(e), seeking permission to Appeal a Decision on Costs given at the conclusion of a Trial. The Application was dependent on whether the Defendants had a good and arguable case with sufficient merit to warrant scrutiny on Appeal and of importance to the law in general.

The Court stated that Costs Decisions are highly discretionary and will not be interfered with lightly; they should not be set aside on Appeal unless the Court below made an error in principle or the Costs Award was plainly wrong. Permission to Appeal Costs Orders should be granted sparingly, and the Party seeking permission to Appeal must meet a high threshold.

The Court noted that the Trial Judge had followed a flawed process when he delivered the first Costs Decision, knowing the counsel specifically requested the ability to speak to Costs without allowing them to do so, and improperly considered the alleged impecuniosity of the Plaintiff in making the initial Costs Awards. However, he corrected his error and allowed for full submissions on Costs before issuing the second ruling. The Trial Judge indicated in the first and second Costs Award that the Costs would be modest given the dismissal of both the Statement of Claim and the Counterclaim. The Trial Judge stated that he had considered Schedule C of the Rules, the case authorities provided, the various offers from both Parties, and the proposed Bill of Costs.

The Court held that the Defendants did not have a good and arguable case having sufficient merit to warrant scrutiny given the clear indication by the Trial Judge that Costs should be only nominal. Further, while the issues may be important to the Parties, they were not important for the law in general. Ultimately, the Court dismissed the Defendants’ Application for permission to Appeal.

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