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BC Notaries Speak Your Language
of improper motive, abuse of the
Court’s process, misleading the
Court, and persistent breaches of the rules of professional conduct and the Rules of Court that prejudice the applicant; 5) special costs can be ordered against parties and nonparties alike; and 6) the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a successful party as a bonus for further compensation for that success.
The question in every case is, whether on a consideration of the substandard conduct of the party making the allegation and the conduct of the litigation itself, the person or persons against whom the order is sought has acted in a manner that is sufficiently reprehensible to warrant chastisement of the Court. FIDUCIARIES Special costs are routinely awarded to a party who is a fiduciary in circumstances where there has been no reprehensible conduct by that party or any other litigant. Mawdsley v. Meshen 2011 BCSC 923.
For example an executor/ trustee, in the absence of misconduct, is ordinarily entitled to recoup from the estate the legal costs reasonably incurred in litigation such as in a Wills Variation claim where the executor must be named as a party.
In Re. Campbell Estate 2015 BCSC 774, an administrator was removed and ordered to pay special costs of the application on the basis that his conduct throughout was reprehensible and called for rebuke. CONTINGENCY FEE In an ICBC case, Norris v. Burgess Oct.14, 2015 Vancouver registry M123216 BCSC, the plaintiff was awarded special costs for a 20day jury trial in the amount of the plaintiff’s contingency fee based on the award of $462,000 in damages. We don’t know the percentage of the fee agreement but it is likely in the range of 25 to 33 1⁄3 per cent.
The defendant insurance company had produced videotapes of the plaintiff in 2013 and 2014, but contrary to a Court Order to disclose all surveillance videos on or before October 23, 2015, a video from 2015 was not disclosed until after the third week of trial. CONCLUSION Two trends have emerged with respect to the issue of Court costs in estate litigation over the last 20 years. 1) The usual rule that costs follow the event, as opposed to the estate paying all the parties’ costs, has become the norm.
Exceptions occur such as when the litigation is as a result of the testator’s actions. 2) The increased willingness of the Court to award special costs as a means of discouraging and chastising a litigant whose conduct is considered by the Court to fall within the classification of reprehensible. Reprehensible conduct is defined broadly and encompasses misconduct ranging from scandalous and outrageous at one extreme, to milder forms of misbehaviour warranting judicial rebuke at the other.
Stated bluntly, the Courts are extremely busy and a litigant who wastes the Court’s time runs a significant risk of having to pay the other parties’ legal fees by an award of special costs. s Trevor Todd restricts his practice to estate litigation. He has practised law in Vancouver for 46 years.
Speak Your Language
BC Notaries around our province offer a great many noncontentious legal services (see page 11) in an impressive variety of languages.
