The Applicant applied for permission to Appeal a Costs Award following an unsuccessful Application to remove the Respondents as personal representatives of an estate. The Court set out that the test for permission to Appeal a decision as to Costs only as required by Rule 14.5(1)(e) requires that the Applicant must establish (1)  a good arguable case having sufficient merit to warrant scrutiny by a full panel of the Court; (2) issues of importance to the parties and in general; (3)  the Costs Appeal has practical utility; and (4) no delay in proceedings will be caused by the Costs Appeal.

The Court found that there was no arguable case noting that (1) there was nothing on the record to ground a finding of “reprehensible, scandalous or outrageous conduct” with regard to one of the Respondents that compelled an award of solicitor-client Costs to the Applicant;  (2) there was a practical issue with the Applicant’s claim for solicitor-client Costs as the underlying information for making a determination as to quantum was not provided; (3) Costs were at least in part attributable to the Applicant; (4) although the Applicant’s challenge was sufficiently reasonable for a portion of the time, his concerns were later addressed by one of the Respondents such that the Applicant had no reason to continue with the underlying Application; and (5) the testator did not cause the litigation. 

The Court also noted that although the Costs Award was important to the Applicant, it did not engage issues of general importance. The Court additionally noted that the Application may have been moot because of the Applicant’s stated intention to extend the time to Appeal in related litigation with the Respondents, which would also enable the Applicant to Appeal the Costs award.

The Court accordingly dismissed the Application.

In considering Costs, the Court noted that the volume of the material that had been filed and the arguments represented a level of unfortunate complexity. The Court specified that the filing of Extracts of Key Evidence was unnecessary and that such a document was reserved for Appeals, referencing Rules 14.27-14.29. Conversely, the Court noted that Applications to single Appeal Judges as set out in Rules 14.40 and 14.41 involve filing an accompanying Affidavit, if required. The Court additionally noted that the Applicant was entitled to file new evidence on the Application without an Order, referencing Rule 14.70. The Court found that each Party would bear their own Costs of the Application.