Rule 57 of the Rules of Civil Procedure set forth the factors to be considered by the Court in exercising its discretion under the Courts of Justice Act, emphasizing the result of the case and any written offers to settle. For example, a Court may award costs against a successful party in an appropriate case, or even to a party acting in person. Alternatively, the Court may give directions to the assessment officer to fix costs, although this is rare.
Costs are fixed on either a “partial indemnity” or a “substantial indemnity” basis. The Court will fix costs using a number of discretionary factors set out in rule 57, including the experience of the lawyer, the rates charged, the hours spent and the amount of costs that an unsuccessful party could reasonably expect to pay. In addition, the power to award costs on a “full” as opposed to on a “substantial indemnity” basis and an unrepresented party is clarified.
Unless the parties have agreed on the costs of each step in the proceeding, those who seek costs must give to every other party involved and bring to Court a costs outline. The Court is then to devise and adopt the simplest, least expensive and most expeditious process for fixing the costs. On the hearing of contested motions, unless the Court makes a different order, it shall fix costs and order them paid within 30 days.
Lawyers are now required to come to Court, including trials, prepared for judges to fix costs, except in exceptional cases that justify assessment, or where the service of a Bill of Costs requires a re-attendance or written submissions. In the end, the fixing of costs is still more of an art than a science.
By Charles Baker