4.24: Formal offers to settle
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

Justice Jones addressed the Costs award arising from His Lordship’s earlier Decision (the “Dismissal Application”). In the within Costs Application, Ghost Pine Windfarm LP (“Ghost Pine”) argued that it was entirely successful in the Dismissal Application and should be awarded Costs accordingly.

Justice Jones noted that Rule 10.29 provides that, subject to the discretion of the Court, a successful party is entitled to Costs against an unsuccessful party. Rule 10.31 also directs the Court to take into account the factors prescribed in Rule 10.33. Justice Jones agreed with Ghost Pine’s submissions that the case was both factually and legally complex consisting of, inter alia: (a) three briefs and reply briefs; (b) five half-day examinations on Affidavits; (c) five named Defendants, each requiring a separate Statement of Defence; (d) a total of 20 Affidavits sworn and filed; and (e) hearings on three separate sub-issues to the issues forming the basis of the Dismissal Application.

Additionally, Ghost Pine argued that it served a Formal Offer to Settle on Scott & Associates Engineering Ltd. (“Scott”) pursuant to Rule 4.24, on September 3, 2010. The offer was for Scott to discontinue the underlying Action upon receipt of $10,000.00, inclusive of interest and Costs, from Ghost Pine. Justice Jones, noting the forgoing, determined that the potential value of Scott’s claim to be upwards of $3 million dollars and as such awarded Costs based on Column 5 of Schedule C. Additionally, Jones J. added a multiple of 2 for all steps taken after September 3, 2010.

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