The Plaintiff succeeded at Trial, where the Trial Judge awarded damages of $200,000 for defamation, and Costs of $250,000. When awarding Costs, the Trial Judge found that the Plaintiff had made unproven allegations of misconduct which justified reducing the Costs award. The Plaintiff appealed the Costs award, arguing that the Trial Judge erred in finding that the Plaintiff had not proven allegations of fraudulent concealment and giving false evidence (the “Fraud Allegations”).

The Court considered previous authority on Rule 5.6 and noted that the process of document production depends on the diligence and integrity of the litigants in ensuring that full disclosure is made. The Court also referred to jurisprudence which focussed on the factors to consider when deciding whether to increase a Costs award. After reviewing the findings of fact made at the Trial, the Court disagreed with the Trial Judge’s conclusion that the Fraud Allegations were unproven. As a result, the Court held that the Trial Judge had erred in setting the quantum of the Costs award. The Court awarded a further $200,000 in Costs, increasing the total Costs award to $450,000.