The court divided defendants’ costs of a strike-out application by timeline, reserving early costs where they initially opposed the applicant’s position before later supporting it as the claimant’s case evolved.
- A party who loses an application will generally be liable for the costs of the successful party, and may also be liable for the costs of other parties who supported the successful position where those parties had separate interests requiring representation. [12]
- Where separately represented parties have distinct interests from the primary opposing party, they may be entitled to recover their costs from the unsuccessful party if they can demonstrate a separate issue on which they were entitled to be heard or an interest requiring separate representation. [18, 19, 23]
- The court may order an unsuccessful party to pay the costs of multiple separately represented defendants where each defendant had legitimate separate interests to protect and their representation added value to the proceedings without merely duplicating submissions. [20, 24]
- Where a hearing could have been avoided had a party acted reasonably, such as by submitting amended pleadings in a timely manner, this may be a relevant factor in awarding costs against that party. [13, 25]
- The court may order different costs consequences for different time periods, such as reserving costs incurred before a particular event and awarding costs incurred after that event, to reflect the changing positions and reasonable conduct of the parties. [15, 26]
