The Applicant sought permission to appeal a decision denying costs associated with expert witnesses. In the main Action, the decisions were silent as to costs, and the parties sought direction from the Court of Appeal. The Applicant was awarded taxable costs under column 5 (less 10%) for the Trial and the Appeal, plus reasonable disbursements (the “Costs Direction”).

The Respondents filed an Appointment for Assessment of Costs, submitting the same Bill of Costs the Applicant had provided the Court of Appeal at the time of the Costs Direction. Before the Assessment Officer, the Applicant submitted an amended Bill of Costs, revised to include fees for expert witnesses which had been omitted from the initial Bill of Costs. The Assessment Officer granted the Applicant the amount requested in the amended Bill of Costs, but on appeal, the Court of King’s Bench overturned the Assessment Officer’s decision, agreeing with the Respondents’ argument that the Assessment Officer exceeded his jurisdiction in awarding the expert fees, as “reasonable and proper costs” awarded by an Assessment Officer do not include expert fees “unless a court otherwise orders”, pursuant to Rule 10.41(2)(e).

The Applicant sought permission to appeal the Court of King’s Bench decision denying Costs associated with expert witnesses. Pursuant to Rule 14.5(1)(e), permission is required as the proposed Appeal only concerned Costs. To obtain permission, an applicant must establish all of the following: (i) identify a good, arguable case having enough merit to warrant scrutiny; (ii) the issues must be important, both to the parties and in general; (iii) the appeal must have some practical utility; and (iv) the court should consider the effect of a delay in proceedings caused by the appeal.

The Applicant did not dispute the applicability of Rule 10.41(2)(e) to the fees at issue. Rather, they submitted that the Chambers Judge failed to appreciate her discretion under Rule 10.45(1)(d) to order payment of expert fees, because a Judge hearing an appeal from an Assessment Officer may “make any other order the judge considers appropriate”. The Court found that the role of the Chambers Judge was to implement the Court of Appeals’ Costs Direction, not to exercise her own discretion afresh. Therefore, the question at the core of the Appeal was whether the Court of Appeal intended the costs and disbursements to be assessed to include the expert fees.

In denying the Application, the Court, among other things, found that the interpretation of a Costs Direction attracted deference, as the decision was one of fact or mixed fact and law, and neither had precedential value, nor was a question of general importance.