The issue before the Court in this case was the award of Costs in “novel” cases. In response to the Applicant’s submission that he should be entitled to Costs of a Special Chambers Application as he was substantially successful, the Respondent proposed that no Costs should be awarded because the issue before the Court was “novel”.

The new Rules of Court provide that the novelty of a case may be a factor in determining the appropriate Costs award, in the context of class actions. With respect to all other proceedings, the new Rules of Court do not expressly state that the general approach to Costs should be departed from in novel cases. The common law remains the authority in this regard which provides that the successful party on a matter may not be entitled to Costs if the issue before the Court is a “novel” one. The common law on this point provides “[i]n order to benefit from costs protection, a case must involve truly novel issues, not ‘merely’ ones which are fundamental”.