Anthony Keller

Following a motion in which the defendants successfully sought to strike an affidavit sworn by a lawyer from the plaintiffs’ law firm, the court addressed the quantum of costs payable.

Although the defendants succeeded on grounds different from their primary argument, the court found they were nevertheless the successful party.

The court assessed reasonable preparation and attendance time for counsel and limited clerk time on a partial indemnity scale.

Costs were calculated using hourly rates for counsel and clerk time and applicable tax.

The moving parties brought a motion for summary judgment seeking dismissal of the action and requested that the responding parties’ affidavit evidence sworn by a law partner of counsel be struck.

The court considered whether it was proper for counsel to rely on an affidavit sworn by a partner in the same firm who had previously acted as lawyer of record.

Reviewing prior jurisprudence and professional conduct rules, the court held that certain portions of the affidavit contained improper hearsay, legal argument, and evidence that should have come from the client or documentary exhibits.

The court struck the improper portions and ultimately struck the affidavit in its entirety while granting leave to file new responding material.

The motion for summary judgment was not determined on the merits at this stage.