N. Emblem

Following a successful motion for summary judgment, the moving parties sought costs on a full indemnity basis.

The court found that the responding parties engaged in egregious litigation conduct, including providing false evidence, hiding evidence, and commencing a spurious counterclaim that amounted to an abuse of process.

The court held that an award of punitive damages does not preclude an award of full indemnity costs where the conduct warrants it.

Costs were fixed at $230,000 on a full indemnity scale.

The defendants moved under Rule 25.11 to strike out portions of the plaintiff's defence to counterclaim, arguing the paragraphs improperly pleaded motive, referenced a failure to provide particulars, and disclosed a settlement offer.

The court dismissed the motion, finding that pleading motive is proper when relevant to an abuse of process defence.

The court also held that Rule 49.06(1) did not apply because the settlement offer was made in a discontinued action, and that settlement privilege had been waived.

The failure to provide particulars was also deemed relevant to the abuse of process defence.

The plaintiff brought a motion to strike the defendants' statement of defence and dismiss their counterclaim for failing to pay a previous costs order of $52,415.07.

The defendants argued they had paid the costs award via two bank transfers.

The court found that the transfers were intended as payments towards an Alternative Payment of Security Option (APSO) under a Mareva injunction, not the costs award.

The court ordered the defendants to pay the outstanding costs by a specified date, failing which the plaintiff could return for further relief.