Eitan Kadouri

Following a decision where the defendants' cross-motion to stay the plaintiff law firm's action pending an assessment of accounts was granted, both parties sought costs.

The defendants claimed $9,553.98 on a substantial indemnity basis, while the plaintiff claimed $24,611.67 on a partial indemnity basis.

The court found that there was divided success and that both sides had taken disproportionate and inappropriate steps in the litigation.

Consequently, the court exercised its discretion to make no order as to costs.

The plaintiffs appealed an order of a Master upholding numerous refusals made during Rule 39.03 examinations of non-party witnesses.

The examinations related to interlocutory motions concerning the late disclosure of a tolling agreement between the defendants.

The plaintiffs alleged 14 errors of fact and law, primarily challenging the Master's findings on litigation privilege, common interest privilege, and the scope of permissible questions for Rule 39.03 witnesses.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors of fact or errors of law, and affirming that the documents and communications surrounding the tolling agreement were protected by privilege.