In Singer v. Hamilton, Mr. Justice William J. Festereyga had to assess costs following the 15-day trial of an occupier’s liability case. He had assessed damages and interest at $177,373.55. His decision reaffirms that even awards of substantial indemnity costs are subject to the litmus test of “reasonableness”.
The plaintiffs had served an offer to settle in June, 2006, for what was apparently an amount considerably less than the award at trial. Accordingly, the plaintiffs were entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.
The plaintiffs claimed costs totalling $258,475.43. The defence proposed a figure of $72,848.95.
Justice Festereyga noted that “the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant” and concluded that, “the amount claimed for costs in this proceeding exceeds, to a great extent, the amount awarded by me in a non-jury trial. I find on this basis that the amount of the costs claimed is unreasonable.”
His Honour did not think that the matter had been particularly complex. He concluded that an excessive amount of time had been spent and that there had been duplication as a result of the number of lawyers who had worked on the file.
After paring down the various components of the plaintiffs’ bill of costs, he arrived at fees of $124,001.19 and disbursements of $53,949.74, for a total of $177,950.93 (within $600 of the award of damages).