This Application concerned the allocation of Costs following a case with mixed outcomes, specifically in Serinus Energy PLC v SysGen Solutions Group Ltd, 2023 ABKB 625. The Court faced the task of determining appropriate Costs in a context where both parties experienced partial victories. Serinus Energy PLC (“Serinus”) received a net judgment accounting for both the Statement of Claim and the Counterclaim, notwithstanding that the legal expenses incurred by both parties substantially surpassed the financial awards granted.

In its deliberation, the Court invoked Rules 10.29(1), 10.31, and 10.33, highlighting the Court's extensive discretion in awarding Costs. The Court noted that its discretion aims to ensure an equitable balance between the litigation's outcomes and the financial burdens shouldered by the parties. Furthermore, drawing upon the precedent set by McAllister v Calgary (City), 2021 ABCA 25, the Court underscored its authority to depart from the "reasonable and proper costs" framework, enabling it to order either reduced or enhanced Costs as it sees fit. The Court underscored the potential inadequacy of applying Schedule C for Costs in a straightforward manner, pointing out that such an application might not achieve reasonable partial indemnification for either party or mirror an amount that the losing party could reasonably be expected to pay, thereby necessitating substantial adjustments to Schedule C.

In evaluating the Costs implications stemming from the mixed successes in both the Statement of Claim and the Counterclaim, the Court also investigated whether either party had attained substantial success during the proceedings. Recognizing the diverse approaches in existing jurisprudence, the Court embarked on a detailed analysis guided by the provisions of Rule 10.33.

After examining the relevant factors, including the success achieved by each party in their respective claims and the overall divided success across the Action, the Court arrived at its conclusion. It was held that Costs should be awarded to each party for their independent claim, with these amounts subject to mutual offset.