The parties had arrived at a settlement but had left open the matter of Costs. The Applicants sought solicitor-client Costs on a full indemnity basis, and the Respondents argued that Schedule C Costs were appropriate.

Despite the matter concluding without Trial, the Applicants argued that they were successful in the litigation and that therefore, they should be presumptively entitled to Costs, pursuant to Rule 10.29. Justice Jones rejected the Applicants argument, finding that they could not rely on Rule 10.29, as they could not claim to have been successful in the Action when it was settled with no finding on the merits. Justice Jones noted that the Applicants must rely on the Court’s general discretion to award Costs pursuant to Rule 10.31, independent of success of a party. The Court added that the correct approach was to confine its analysis to the Applicant’s three successful Applications.

The Court confirmed that, pursuant to Rule 10.33 and the case law, it is correct to consider pre-litigation conduct and the complexity of the matter, in determining the appropriateness of solicitor-client Costs. With respect to the Respondents’ argument that the Court should apply Schedule C Costs, Justice Jones confirmed that Schedule C is not the default rule, but only one of the options that may be used to achieve a reasonable Costs Decision under Rule 10.31(1)(a). For two of the three Applications, Justice Jones awarded the Applicants 50% of their assessed solicitor-client Costs. For the third Application, Justice Jones awarded the Applicants 75% of their assessed solicitor-client Costs, due to the complexity of the matter.