Douglas Best

The defendants in a defamation action sought leave to amend their statement of defence to plead limitation defences under sections 5 and 6 of the Libel and Slander Act.

The plaintiff opposed the motion, arguing that the amendment would cause actual prejudice due to the passage of time, changes to computer systems, and the unavailability of website snapshots from the date of publication.

The court granted the motion, finding that any evidentiary difficulties would prejudice the defendants rather than the plaintiff, and that the proposed defences were tenable at law.

The amendment was granted on the condition that the defendants pay the plaintiff's costs thrown away.

Following the dismissal of the plaintiff's motion for an interlocutory injunction, the defendants sought costs of over $100,000 payable forthwith.

The court noted the general rule that an unsuccessful party on an injunction motion typically pays costs forthwith, but found this to be an exceptional case.

The court found the defendant accountant's evidence regarding his involvement in the allegedly fraudulent transaction to be highly questionable and contrary to normal business practices.

Consequently, the court fixed costs at $85,000 on a partial indemnity basis but ordered them to be in the cause, leaving the ultimate burden of costs to be determined at trial.