Samuel Marr

The defendants appealed a Master's decision refusing to discharge a certificate of pending litigation (CPL) on their property.

The plaintiff had commenced an action for specific performance of an agreement of purchase and sale.

The defendants argued that the plaintiff's subsequent purchase of a nearby property negated the uniqueness of their property.

The court upheld the Master's decision, finding no error of law in her assessment of uniqueness or her reliance on an affidavit from the plaintiff's ex-husband explaining the purpose of the second property.

The court concluded there remained a triable issue regarding the plaintiff's interest in the land and that the balance of convenience favoured maintaining the CPL.

The plaintiff sought approval of a $17.5 million settlement with the remaining defendants in a class action regarding a charitable tax scheme.

The court approved the settlement as fair and reasonable, noting the significant risks of further litigation, including enforcement issues in Bermuda.

The court also approved class counsel's 33% contingency fee of $5,829,427.20 plus HST, and a $50,000 honorarium for the representative plaintiff, who made extraordinary efforts and financial sacrifices.

A costs request by third parties was dismissed.

The plaintiff brought a motion to certify a class action against the defendant, who operated a cheque-cashing facility that allegedly processed funds from a massive investment fraud.

The court granted leave for the plaintiff's four-year delay in bringing the certification motion, finding the delay was reasonably explained and agreed to by the defendant.

The court also allowed amendments to the statement of claim.

Finally, the court certified the action as a class proceeding, finding that all requirements under section 5(1) of the Class Proceedings Act were met, including identifiable class, common issues, preferability, and suitable representative.

In a class proceeding, a subgroup of third party distributor defendants sought legal fees of approximately $286,738 on a full indemnity basis payable forthwith by the Class Proceedings Fund following negotiations and a court order amending certified common issues and staying a third party claim.

The court acknowledged that the subgroup’s counsel contributed to the proceedings but noted that multiple parties’ counsel had similarly contributed.

Given the complex, multi‑party interactions surrounding the negotiations and motion process, the court held that determining entitlement and quantum of costs at this stage would be impractical and counter‑productive.

The court therefore declined to award immediate costs and directed that costs be addressed at the conclusion of the third party action.

The request for immediate payment from the Class Proceedings Fund was rejected.

Costs decision following the abandonment of a Rule 45 motion in a class proceeding seeking an order requiring the defendant to pay an alleged fund into court.

The court considered the presumptive rule under Rule 37.09(3) of the Rules of Civil Procedure that a responding party is entitled to costs when a motion is abandoned.

While the plaintiff had a reasonable basis initially to believe the defendant possessed the alleged fund, the court found the motion would have failed because the existence of a fund could not be proven.

The court declined to award substantial indemnity costs due to the absence of reprehensible conduct but granted partial indemnity costs.

The defendant was awarded $30,000 for the abandoned Rule 45 motion and $8,750 for a related refusals motion.

In a certified class proceeding concerning an alleged defective charitable gift program, the plaintiff moved to amend the certified common issues and to stay the defendants’ third‑party claims against distributors until after the common issues trial.

Competing drafts of revised common issues and orders were submitted by the plaintiff, defendants, and another defendant concerned about exposure to an unpleaded claim.

The court preferred the plaintiff’s proposed revisions and order because they more directly preserved the objective of a focused common issues trial that would not bind or involve the distributors.

However, the proposed amendments required clarification to address concerns that they might create liability for negligent implementation of an otherwise valid program, which had not been pleaded or certified.

The court directed that the revisions be modified to limit the issues or, alternatively, that the plaintiff bring a motion to amend the statement of claim and certify the additional common issue.

In a class proceeding settlement approval context, the court considered a motion by class counsel for approval of contingency legal fees equal to one-third of the settlement fund.

The court had initially approved a 25% fee but requested further submissions regarding the higher amount.

Upon reviewing supplementary submissions, the court concluded that contingency fee agreements fully understood and accepted by representative plaintiffs should be treated as presumptively valid.

The court reasoned that focusing on docketed time or retrospective assessments of litigation risk provides little principled guidance and undermines predictability in class action litigation.

Finding that the representative plaintiff understood and supported the fee, that the percentage was consistent with personal injury contingency norms, and that the amount was not unseemly, the court approved the full one‑third contingency fee.