10.31: Court-ordered costs award
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiff, Boyd, unsuccessfully applied to summarily dismiss the Defendant, JBS Foods’ Appeal. As a result, JBS Foods applied for enhanced Costs against the Boyd. Boyd argued that party-party Costs on the lowest column of Schedule C should apply.

The Court of Appeal held that there were no exceptional circumstances to award full-indemnity Costs, but that the lowest column of party-party Costs was too low. The Court noted that Schedule C Costs only govern Assessment Officers, and a Judge or Master need not use it at all. Specifically, Rules 10.31(3) and 10.33(1)(c) permit a Judge to consider what is indirectly in issue, and issue Costs accordingly. Court of Appeal Costs are based on what is in issue under Appeal, not on the value of the particular issue under Appeal.

The Court agreed with Boyd that Costs would not normally be enhanced just because the losing party had advanced a proposition for which no authority could be found. However, Applications to dismiss an Appeal summarily are rare and successful Applications are even rarer: they are usually based on an obvious flaw, such as appealing in the wrong Court or without the necessary permission. Further, the Court of Appeal does not generally encourage such Applications because they rarely save time or money. In this case, Boyd’s Application essentially doubled the total work of JBS Foods, since the Motion entailed almost all the work and procedures of a full Appeal. The Court of Appeal also noted that Schedule C Costs for Applications are modest and have not been altered to reflect that more Applications have been transferred to a Judge alone as opposed to a panel of three Judges. The Court held that, while there was no serious misconduct, the Application to summarily dismiss the Appeal was unfounded to some degree. Increased Costs were therefore appropriate in the circumstances.

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