4.29: Costs consequences of formal offer to settle
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The issue before the Court in this case was the appropriate costs award to be granted arising from the dismissal of an Appeal. The Respondents argued they were entitled to double costs arising from a Formal Offer of Judgment on column 4 or 5 of Schedule C. The Appellants argued that no monetary claim was advanced and as such Schedule C, Division 1, s. 1(4) of the new Rules was engaged, which reads in part:

4.         Unless the Court otherwise orders,

(a)        when a remedy is given in a judgment or order other than in addition to the payment of money, or

(b)        when judgment is given for a defendant in an action in which a remedy other than or in addition to the payment of money is sought,

costs must be assessed according to the higher of Column 1 of the tariff in Division 2 [The Tariff], and the scale that would have applied if the other remedy had not been given or sought.

The Court applied the new Rules and held that no remedy was sought nor given for the payment of money and as such the Appellants were correct. However, the Court noted that it retained a residual discretion regarding costs and ultimately departed from the direction provided in Schedule C, and awarded costs based on the circumstances of the Appeal, the importance of the outcome of the Appeal to the parties and the amount of money potentially involved.

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