In a standalone costs decision arising from two successful commercial actions by the plaintiff, the court considered whether the defendants' conduct justified full indemnity costs from the inception of the proceedings and what quantum of costs was fair and reasonable.
The court held that although the defendants' conduct, including fabrication and destruction or concealment of documents, was extremely troubling and lengthened the litigation, it did not meet the threshold of reprehensible, scandalous, or outrageous conduct warranting elevated costs from the outset.
Applying Rule 49 and the general principles governing reasonableness, fairness, and proportionality, the court awarded partial indemnity costs to the date of the plaintiff's written offers to settle and substantial indemnity costs thereafter.
The court declined to reduce the amounts claimed and awarded costs of $159,003.92 in one action and $88,125.65 in the other, while also correcting an error in the underlying judgment nunc pro tunc.
