A little over a month before Trial, the Defendants made Formal Offers to Settle, which the Plaintiffs accepted. The Parties agreed to Consent Judgments which provided for party-party Costs as agreed or, failing agreement, to be taxed with reference to the relevant column of Schedule C. The Parties were unable to agree on Costs and attended before an Assessment Officer who referred six issues to the Court for determination.

Before addressing the issues, the Court analyzed whether the wording of the Consent Judgment operated to limit its discretion in awarding Costs. Shelley J. found that the Parties had agreed to submit disputes to taxation which inherently implied the discretion of the Court to award Costs. The Court held that clear and strong language is required to contradict that implication. Shelley J. then addressed in turn each of the six issues referred by the Assessment Officer.

First, the Court assessed whether the Plaintiffs were to be awarded an inflationary factor. The Court found that the Rules of Court Committee’s recent request for comment and its ongoing review of the tariff of recoverable fees in Schedule C was a relevant consideration. In addition, the Plaintiffs had provided an economist’s report evidencing the rate of inflation. The Court was satisfied that this was an appropriate case to award an inflationary factor and did so on the basis of the economist’s report, at the rate set forth in that report.

Second, the Court addressed Costs for Notices to Admit. The Plaintiffs sought Costs for each of the Notices to Admit Opinions, Notices to Admit Documents, and Replies to the Defendants’ Notices to Admit Documents. The Defendants argued that in the Notices to Admits identical opinions were unnecessarily duplicated. The Court found the Notices to Admit were likely helpful in settlement and the Experts’ Reports were lengthy. Accordingly, it was appropriate to award a fee in respect of each Notice to Admit Opinion. The Plaintiffs served a Notice to Admit eleven documents which resulted in the Defendants admitting nine of them. The Court found that this would have significantly shortened Trial and awarded the Plaintiffs the Costs thereof. Finally, the Plaintiffs sought Costs for Replies to Notices to Admit Documents served by the Defendants. The Plaintiffs relied on Rule 1.7 to assert that a Reply to a Notice to Admit was analogous to a Notice to Admit for the purposes of a Costs award. The Court was not satisfied that the Replies to Notices to Admit were appropriate or warranted, and determined that it would be inappropriate to award Costs based on the proposed application of Rule 1.7.

Third, the Plaintiffs sought to recover the disbursement expense for Costs of a mediation. The mediation had occurred under the old Rules. However, the Court found that Rule 10.41(2)(d) was relevant. Shelley J. explained that the rationale for the Rule was “that dispute resolution processes benefit both parties and promote early settlement”. Finding that Parties should be encouraged to seek alternative dispute resolution, the Court declined to award Costs for the mediation.

Fourth, the Court addressed costs awards for nominee physicians at Rule 5.41 Examinations. The Plaintiffs sought to recover disbursements for fees paid to nominee physicians. The Defendants argued that the Plaintiffs must first establish a need. The Court held that nominee medical expert fees should be awarded if the fees are reasonable and appropriate. Shelley J. held that, in this case, they were, and awarded the Plaintiffs Costs. The Court went on to note that there is no need to prove necessity to justify an award of Costs for a nominee’s attendance.

Fifth, the Defendants disputed the Plaintiffs’ entitlement to recover the Costs of an Expert’s Report from PricewaterhouseCoopers, arguing that the fee was unduly high. The Court noted that the Defendants presented no particular evidence on this point, but rather relied on general principles from case law. Shelley J. found that the Expert’s Report at issue had been complicated by the difficulty of assessing a fledgling business, and was a key factor in settlement. Her Ladyship also noted that the fee had already been reduced. The Court rejected the generalized arguments for a reduction of the fee for the Expert’s Report from PricewaterhouseCoopers and awarded the Plaintiffs full Costs for this disbursement.

Finally, the Plaintiffs sought disbursements for photocopying in-house at the legal firm at $0.28 per page. The Defendants argued that photocopying costs should be restricted to $0.15 per copy in accordance with amounts set by jurisprudence. The Court held that the $0.15 per copy rate applies only in the absence of evidence substantiating a higher rate. In this case, the Plaintiffs provided the Affidavit of a legal assistant which showed an actual cost of photocopying of $0.38 per page. Accordingly, the Court held that $0.28 per page was supported on the evidence and granted costs of photocopying at that rate.