4.29: Costs consequences of formal offer to settle
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiffs brought an Application to the Court for direction on Costs. At Trial, Justice Hollins found that the Defendants were not liable for the Plaintiffs’ alleged losses. The dispute regarding the appropriate Costs was complicated due to the treatment of a Formal Offer that was advanced by the Defendants in the course of litigation.

Justice Hollins stated that under Rule 10.33, it is important to remember that the Trial Judge has discretion regarding Costs Awards. On May 1, 2020, Schedule C of the Rules was amended to increase the amount of Costs Awards for various steps in litigation. The Trial of this matter took place prior to May 1, 2020; however, Justice Hollins applied the amended Schedule C and held that the wording of the amendment was clear in that it was irrelevant whether the particular step occurred before or after May 1, 2020, and that the higher fees were to apply.

With regards to Rule 4.29(3), Justice Hollins stated that the Defendants are entitled to double their recoverable Costs under Schedule C provided the Formal Offer was genuine and that there was an element of compromise. Justice Hollins found that the Defendants’ Formal Offer that the Plaintiffs discontinue while the Defendants waive their Costs was both genuine and contained a compromise. As such, the Defendants were entitled to double Costs for the steps taken after the issuance of the Formal Offer.

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