The Appellant appealed an Order denying its request for a declaration that the Respondent underwriters had a duty to defend certain the Appellant. The Appellant also appealed the Chambers Judge’s Decision to award double costs. The Chambers Judge was asked to determine whether the underwriters had defence obligations under one, or both of two insurance policies.

The Chambers Judge determined that there was no duty to defend under one policy and determined she could not fairly determine whether a duty to defend was triggered under the second policy on a summary basis and referred this question to a Trial.

The Court found Chamber Judge’s decision to refer the question of the second policy to Trial engaged the principles that guide determination of Summary Judgment Applications under Rule 7.3(1). The Chambers Judge’s Decision to refer the question to Trial was discretionary and entitled to deference. Costs awards are also discretionary and owed deference on appeal.

The Court also disagreed that the Chambers Judge failed to consider the factors for a costs award in Rule 10.33. In determining that double costs were appropriate, the Chambers Judge specifically considered the Underwriters’ Calderbank offer, the complexity of the Application and the failure of the Appellant to concede one of its main arguments until the commencement of the Hearing. The Court found no error justifying appellate intervention. The Appeal was dismissed.