10.33: Court considerations in making costs award

Case Summary

After reviewing written submissions from the Parties, the Court considered the appropriate Costs Award after dismissing the Applicants’ Application in Commercial Chambers.

Relying on Rule 10.33, the Respondents sought full indemnity Costs of $5,946.35 or, in the alternative, Costs of $4,130 in accordance with Column 4 of Schedule C.

The Applicants offered to pay what they refer to as enhanced Costs of $2,973.18. The Applicants argued, and Jones J. agreed, that there was no justification for a significant departure from the normal indemnification of approximately 40% - 50% of solicitor-and-own-client Costs in favour of the successful Party. The Court noted that the Respondents’ request for Costs of $4,130 would amount to 69% of the Respondents’ alleged solicitor-and-own-client Costs.

Jones J. determined that the Applicants’ attempts to resolve the matter were not blameworthy and therefore held that no further enhancement of Costs was appropriate. Though the Application was dismissed, there was no finding on the merits that the Applicants’ claims lacked substance or validity. Although Jones J. held that the matter would be inappropriate to be heard in Commercial Chambers, the Applicants were allowed to pursue their requests through the normal civil litigation process which might entail Questioning on Affidavits and a viva voce hearing or Trial.

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