The Parties in this Action returned to the Court of Appeal for a direction as to Costs.  In the final result, the Appellant won at the Court of Appeal.

The Respondents agreed that they should repay the Costs which they collected for the Motions before the Master and Chambers Justice, but argued that they ought to pay nothing for those two Motions.

The Respondents submitted that Costs would not be appropriate under the circumstances because a second Affidavit was filed on Appeal from the Master to the Chambers Justice and the Appellant’s Court of Appeal Factum contained a new argument.

The Court of Appeal rejected this argument, stating:

…Neither act is misconduct or sharp practice, and both are frequently done. The new argument was not an entirely fresh topic, and was very relevant and foreseeable, and required no new evidence. Rule 6.14(3) gives a very lax test for such new evidence. Lack of due diligence is not one of the tests. … [emphasis in original]

The Appellant was granted party-party Costs for the Motions in question.