The Plaintiffs lost at Trial and appealed the Costs award made against them. The Trial was lengthy and complex, with voluminous documentation. The Trial Judge awarded Costs pursuant to Schedule C and increased them by 25% to account for inflation. During the litigation, the Plaintiffs amended their Claim to $25 million. As such, the Costs for the steps after this amendment were calculated pursuant to Column 5. The Trial Judge awarded double Column 5 Costs since the Claim was well in excess of the $1.5 million provided for in Column 5. The Plaintiffs appealed the Costs award which accounted for inflation, and the multiplication of Column 5 Costs.

The Court of Appeal noted that the amounts in Schedule C have not been updated since 1998 and Judges have wide discretion in awarding Costs. The criteria in Rule 10.33 for exercising the Court’s discretion in awarding Costs would lose meaning if the Court was restricted by Schedule C amounts. Since 1998, the cost of living has increased by 39%. As such, the increase in Costs of 25% for inflation was not unjust. With regard to double Column 5 Costs, Rule 10.31(3)(b) explicitly allows a Judge to award a multiple of any amount in any column. Further, an Assessment Officer may determine if there is any over-indemnification under Rule 10.41 due to double the amount of Column 5 being awarded. The Appeal was dismissed.