This was a Costs Application following a previous Decision of Ashcroft J. The Plaintiff had been successful in one part of his claim, and unsuccessful in another. Damages were awarded in favour of the Plaintiff, although less than the amount claimed. The Plaintiff argued that he should be entitled to full Costs payable pursuant to Column 3 of Schedule C, as well as expert fees, second counsel fees, and enhanced Costs on parts of the tariff.

Ashcroft J. noted that “[t]he usual rule is that costs are payable by the unsuccessful party to the successful party on a party-party basis.” Ashcroft J. cited Rules 10.31 and 10.33 which sets out certain factors that the Court may consider when awarding Costs, including the result of the Action, the degree of success of each party, the amount claimed and the amount recovered, and the conduct of a party that tended to shorten or delay the Action.

Ashcroft J. held that the issues on which the Plaintiff was successful were not minor issues in the Trial, and the issues on which the Plaintiff was not successful were intermingled with the other issues. On this basis, the Court allowed party-party Costs under Column 3 of Schedule C, reasonable disbursements, and second counsel fees.

With respect to expert fees, the Court instead awarded costs to the Defendant, finding that the expert expenses by the Plaintiff were disproportionate to the strength of the claim that he made. The Court ordered that the Plaintiff pay Costs to the Defendant associated with the Trial time dedicated to the experts, being one half of the amount claimed by the Defendant for expert fees. The Defendant was also entitled to its interpretation service fees, and was allowed to claim second counsel fees in relation to the Trial time of the Defendant’s experts.