jeffrey j

10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

The Defendants, who were divided in two groups, each with their own counsel, sought two sets of Costs on a solicitor-client basis or elevated scale following their success at Trial. The Plaintiff asserted that a single set of Costs on the standard tariff was appropriate, and that Costs should be assessed in accordance with each party’s respective success on an issue by issue basis.

Justice Jeffrey considered Rules 10.29, 10.31 and 10.33, and confirmed: the Rules relating to Costs are to be interpreted in such a way as to do justice between the parties; solicitor and client Costs are rare and exceptional; alleging but not proving fraud is relevant, but not determinative, to awarding solicitor and client Costs; and enhanced Costs can be awarded to signify Court disapproval of a litigant’s conduct.

Jeffrey J. held that a single set of Costs for all Defendants collectively was inappropriate in this case because the interests of the Defendants were not aligned on all issues. Each group retaining their own counsel was not unnecessary, or duplicative. Considering Costs on an issue by issue basis was inappropriate since the issues were tied together and common evidence was proffered.

Justice Jeffrey awarded Costs to the Defendants on an enhanced scale amounting to four times Column 5 of Schedule C for those procedures that related to the main Claim. Justice Jeffrey considered the complexity of the Trial, the degree of success enjoyed by the Defendants, the importance of the issue to the parties, the fact that fraud was alleged but unproven, and Plaintiff counsel’s conduct in advancing clearly unmeritorious positions. His Lordship held that it was appropriate to address Costs in respect of the Counterclaim separately since the factors affecting Costs in Rule 10.33(1), when applied to the issues in the Counterclaim, resulted in different outcomes from the issues within the main Claim. Each party was ordered to bear their own Costs for proceedings related to the Counterclaim.

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