The successful Appellant, Elan, sought direction from the Court of Appeal on the Costs of the Trial and Appeal. Elan argued that, for the Trial and Appeal Costs, a multiplier of 1.6 should be used to bring the amounts in Schedule C up to date with current money values, given that Schedule C had not been revised since 1998. Elan further argued for enhanced Costs due to alleged unnecessary delay and expense due to the Respondent’s conduct. The Respondent submitted that its conduct during the litigation did not cause extensive problems and it did not act in bad faith.

The Court of Appeal noted that deferring the issue of Trial Costs to the Court of Appeal presents problems, as the Court does not have the benefit of the opinion of the Trial Judge as to the implications and effect of any strategies and conduct prior to the Appeal, and whether the parties’ conduct led to unnecessary Costs and delay. A Trial Judge is better situated to consider whether a multiplier should be used, as opposed to the default Rule 14.88 for the Court of Appeal. Nonetheless, the Court determined that a multiplier of 1.5 of Schedule C, Column 4 was appropriate in this case.