BURRIS v DYCK

The Court considered the appropriate Costs Award following the Plaintiff's Statement of Claim being struck.

Justice Lema held that costs should be awarded based on Column 1 of Schedule C. The Defendants had sought Column 3 costs, despite the fact that the Plaintiff had claimed "compensation and relief…as the [C]ourt shall deem fit" in an unquantified amount. The Court found there was no justification for applying Column 3. The Court emphasized that the Statement of Claim contained no quantification of Damages and no particulars of the alleged pain and suffering from which the scale of Damages could be gauged. The Defendants failed to identify any basis — such as complexity or special circumstances — to support a higher column.

The Court also found that it was not appropriate for the Defendants’ draft Bill of Costs to include both Item 7(1) ("Contested applications…before…[a] judge…") and Item 8(1) ("Applications…requiring written briefs"). Justice Lema stated that Items 7(1) and 8(1) are mutually exclusive alternatives corresponding to Applications with or without written Briefs. Because the Application proceeded with written Briefs, Item 8(1) applied.

Justice Lema considered whether the Defendants could recover costs under Item 12 (“written argument requested by a trial judge for use at trial”). The Court found that recovery under Item 12 was not appropriate, since the Trial stage was not reached nor did the Court request Trial Briefs from the parties. 

Finally, the Court held that a formal Offer made by the Defendants to discontinue the Action without costs, which was rejected by the Plaintiff, entitled the Defendants to double costs for post-Offer litigation steps pursuant to Rule 4.29. Justice Lema confirmed that Rules 4.29(2) and (3) provide that if a Defendant makes a formal Settlement Offer which is rejected and later receives a Judgment or Order equally or more favourable to the Defendant than the Offer, then the Defendant is entitled to double costs. Justice Lema referenced case law for the principle that the Offer must contain a genuine element of compromise.

The Court held that the Defendants' Offer met the requirements of Rule 4.29. Justice Lema found that the Offer was made after disclosure, at a point when both parties had sufficient information to assess the Claim’s merits and was not made at the eve of Trial. Further, given the obvious “strike-ability” of the Claim due to the absence of particulars and the material costs incurred by the Defendants, the Offer to forego those costs was a meaningful compromise.