The Plaintiffs were successful at Trial in a matter concerning the negligence of their lawyer, and they applied for Costs. The Plaintiffs had sued a number of Defendants, but the only Defendant who remained at the end of Trial was the lawyer. The Defendant lawyer argued that, because the Plaintiffs were self-represented for the majority of the proceedings, they should receive minimal Costs. Moen J. held that the Defendant’s conduct throughout the Action was inconsistent with the guiding principles of Rule 1.2, and in breach of Rules 5.9-5.10 regarding reciprocal obligations of the parties for document disclosure.

Justice Moen first addressed what Costs were generally available to the Plaintiffs, noting that Rule 10.29(1) allows Costs for the successful party. Rule 10.31(5) explicitly permits a Court to order Costs to a self-represented litigant for an amount, or part of an amount, equivalent to the fees set out in Schedule C. Moen J. stated that the plain reading of this Rule means that a self-represented litigant is entitled to Schedule C costs for specific steps taken. For those activities where the Plaintiffs were represented by counsel, they are presumptively owed party and party Schedule C Costs. Rule 10.31(5) then applies to the remaining steps taken by the self-represented litigant. However, Justice Moen noted that the Court had a broad authority to award appropriate Costs for the circumstances, pursuant to Rule 10.31 and in light of the factors enumerated in Rule 10.33.

In the view of the Court, the Plaintiffs had conducted themselves appropriately: they had not wasted Court time or overly complicated the proceedings. Conversely, the Defendant had acted aggressively, failed to disclose relevant documents in his possession, conducted poor and incomplete research, failed to admit obvious liability, and attempted to cause litigation by installment by splitting the Trial to determine a preliminary issue. Justice Moen held that the split Trial was a serious abuse of Court process and warranted a strong Costs sanction. A split proceeding granted by Rule 7.1 is an unusual step and is normally brought where the preliminary issue is decisive of the matter. Upon Application by the Defendant, Justice Moen preliminarily determined that an expert lawyer was not needed at Trial. The Defendant appealed the Decision without leave of the Court, and without notifying Justice Moen in any way but then abandoned the Appeal. Justice Moen observed that the Defendant did not intend to use the Decision on the preliminary issue to settle the Action, but rather to stall the Trial and cause significant delay. Defendant’s counsel had taken advantage of the fact that the Plaintiffs were self-represented.

Justice Moen considered Costs, and pursuant to Rule 5.12(1), imposed a penalty for the Defendant’s breach of his Rule 5.10 obligations. The Plaintiffs were awarded twice item 3(1) of Schedule C. His Lordship further ordered second counsel fees for the work done by the second Plaintiff at Trial.

Ultimately, Justice Moen held that pursuant to Rule 10.31(5) the Schedule C “cap” does not restrict the Court’s authority to make Costs awards for litigation misconduct outside the items addressed in Schedule C. Capping the Plaintiffs Costs award only to Schedule C amounts denies appropriate justice, invites an abuse of self-represented litigants, and trivializes the waste of judicial resources. The Plaintiffs were awarded full Schedule C Costs and full indemnification of Costs for the steps in the Action where they were represented by counsel. An additional lump sum payment in the amount of $20,000 was awarded for the delay caused by splitting the Trial. The Plaintiffs were not awarded Costs to compensate for lost income during the Action since the lost opportunity to earn income via litigation is not identified as a policy basis for awarding Costs under Rule 10.31(5).