Costigan, watson and Wakeling Jja

4.29: Costs consequences of formal offer to settle
4.31: Application to deal with delay
14.88: Cost awards

Case Summary

The parties sought a determination on Costs following a Decision by the Court of Appeal with respect to an Application for dismissal for delay pursuant to Rule 4.31. The Court noted that a complicating factor in the determination of Costs was that the Appellants, the Defendants in the underlying Action, had served the Respondents with a Formal Offer while the motion to dismiss the Claim was still before the Court of Queens’s Bench. That motion was initially dismissed by the Court of Queen’s Bench but was reversed on appeal.

The Court of Appeal noted that it has the jurisdiction to consider Costs awards of both the Court of Queen’s Bench and the Court of Appeal. Given that the Appeal resulted in a complete reversal of the Trial Decision, the Court of Appeal exercised its jurisdiction and awarded double costs from the date of the Formal Offer to the date of the Queen’s Bench Judgment.

However, the Court was not persuaded that the double Costs award from the Queen’s Bench Judgment should be carried forward to the Appeal in light of Rule 14.88(3). The Court therefore awarded ordinary Costs for Appeals according to Schedule C, Column 5 for the Appeal because the Formal Offer was not revived, and no further offer was made during the Appeal.

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