Following the dismissal of the plaintiff's motion for re-certification of a class action, the defendant sought costs on a substantial indemnity basis.
The plaintiff argued that no costs should be awarded as the motion passed several certification hurdles before failing on the representative plaintiff requirement.
The court rejected the plaintiff's argument, noting that partial success on hurdles does not equate to a divided result.
However, recognizing the difficult circumstances faced by plaintiff's counsel, the court exercised its discretion to award costs to the defendant on a partial indemnity basis in the fixed amount of $50,000.
