RFG PRIVATE EQUITY LIMITED PARTNERSHIP NO. 1B v VALUE CREATION INC, 2014 ABQB 738

STREKAF J

10.2: Payment for lawyer’s services and contents of lawyer’s account
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
10.34: Court-ordered assessment of costs

Case Summary

The Plaintiffs sought enhanced Costs which were incurred as a result of an Application by the Defendant for leave to file an additional Expert’s Report. The parties were scheduled to attend Trial immediately after the Application. The dispute arose over an agreement between counsel with respect to the filing of Expert’s Reports. The Plaintiffs submitted that they should be entitled to solicitor-client Costs due to the conduct of the Defendant who, it was alleged, had knowingly breached an agreement reached between counsel. The Plaintiffs also sought Costs incurred by their Experts in reviewing and preparing Responses to the Defendant’s Expert’s Reports. The Defendant submitted that the Costs should be awarded on a party and party basis, and that Costs for the Plaintiffs’ Experts should be in the cause.

Justice Strekaf stated that Costs are always a matter for the Court’s discretion, pursuant to Rule 10.31, having regard to the enumerated consideration set out in Rule 10.33, including: the success of each party; the amount claimed; the importance of the issues; the complexity of the Action; the conduct of a party which caused delay; the party’s denial or refusal to admit any matter that could have been admitted; whether any Application for proceeding in an Action was unnecessary; and whether a party engaged in misconduct. Her Ladyship noted that Courts generally award solicitor-client Costs only in exceptional circumstances where there has been some form of misconduct, deception of the Court, or other inappropriate behaviour. Strekaf J. observed that the Defendant’s conduct was not sufficiently egregious to justify an award of full solicitor-client Costs against them. However, Her Ladyship was of the view that an elevated award of Costs was appropriate. After considering several factors justifying such an award, Justice Strekaf awarded the Plaintiffs two thirds of the solicitor-client Costs which were reasonably and properly incurred by them in responding to the Defendant’s Application to introduce further evidence by way of the Expert’s Report. Justice Strekaf ordered that if the parties were unable to agree on the amount of Costs, that they would be determined by an Assessment Officer pursuant to Rule 10.34.

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