campbell J

10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Court was asked to consider the Costs consequences of a vigorously contested Action to remove the trustees of a trust. The Applicants were ultimately successful in securing removal of the trustees, and as such, the Court was prepared to award Costs to the Applicant. The core of the Court’s analysis concerned the magnitude of Costs that were appropriate in the case, having regard to the non-exhaustive considerations set out in Rule 10.33.

Campbell J. declined to award Costs on a solicitor and own client basis. While the Respondents had advanced some unreasonable positions, and committed some defensive misconduct, Campbell J. was not satisfied that the circumstances were of the “rare and exceptional” nature necessary to award Costs on a solicitor and own client basis.

The Court then considered Costs on a party-party basis. The Respondents asserted that as declaratory relief, rather than monetary relief, was sought, Section 1(4) of Schedule C directed that Costs be based on Column 1. However, the Court determined that the complexity of the matter was sufficient reason to consider “the value of the assets sought to be controlled or interfered with” as the basis for assessing the appropriate column, and Column 5 was approved as the baseline. Having regard to the unreasonable positions and defensive misconduct of the Respondents, the Court ordered double Column 5 Costs. In light of the considerable actual legal fees incurred by the Applicants, Campbell J. further ordered that a 40% increase in Costs was necessary to account for inflation.

Lastly, Campbell J. ordered that the fees paid by the Applicants for an expert witness were recoverable against the Respondent because the retainer of the expert, and the fees charged, were reasonable.

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