The Applicant was substantially successful on his application and sought solicitor-client costs or, in the alternative, partial indemnity of 70% of the legal fees and disbursements incurred.

Justice Jones noted that Rule 10.29(1) entitles a successful party to costs, payable forthwith by the unsuccessful party. When awarding costs under Rule 10.31, the Court may consider any of the factors under Rule 10.33(1), including the degree of success of each party.

Justice Jones then considered the law on costs in cases of mixed success.

If the Court cannot determine whether a party is “substantially” successful, there should be no costs order and the parties will bear their own costs. While the Court maintains discretion to apportion costs on an issue-by-issue basis, claim-by-claim basis, or even head-of-damages basis, this discretion is rarely exercised. The Court may apportion costs by issue where “separate issues are easily definable and severable” and the following matters are taken into account:

(k)                The degree of success by each party;

(l)               The conduct of the parties;

(m)                The necessary length of the proceedings; and

(n)               The nature and significance of the evidence presented.

Justice Jones found that the Applicant was substantially, but not entirely successful, since he failed to obtain the consequential relief sought. Bearing in mind that costs should not be awarded on an issue-by-issue basis, Justice Jones held that the Applicant’s failure to obtain the consequential relief did not detract from his substantial success.

On the facts, the Applicant was awarded 60% of his assessed legal fees and disbursements.