Costs in Estate Litigation - Toronto Estate Law Blog http://estatelaw.hullandhull.com/articles/blog-posts-hull-on-estates/ en-us Copyright 2008 Tue, 25 Sep 2007 00:30:18 -0500 Fri, 04 Jul 2008 11:01:49 -0500 http://www.movabletype.org/?v=3.34 http://blogs.law.harvard.edu/tech/rss The Costs of doing Business It is often impossible to predict how costs will be decided by the presiding judge at a motion, application, or trial.  The Rules of Civil Procedure encourage a judge to fix the costs of the proceeding before him or her. A judge has wide discretion to award costs - discretion that an appeal court will be reluctant to interfere when faced with the issue. With the demise of the infamous cost grid, costs have tended to come down and the court is now largely motivated by deciding what is reasonable in the circumstances and fair to all parties with an eye to the factors listed in Rule 57.01(1).

An interesting case recently released by the Ontario Superior Court of Justice in Rand Estate v Lenton caught my attention.  In a relatively rare decision, the court awarded costs against the solicitors for the respondents.

According to the court, the conduct of the solicitors for the respondents caused costs to be incurred without reasonable cause or wasted by undue delay, negligence or default. The solicitors for the respondents systematically engaged in a pattern of inappropriate conduct, including: (1) inordinate and unnecessary delays; (2) bringing numerous and unnecessary motions; (3) being inadequately prepared; (3) failing to appear; (3) disregarding the professional obligation to be civil and courteous to others; (4) presenting arguments that had no merit; (5) acting for the respondents despite having a clear conflict of interest; (6) failing to do anything to resolve the litigation; (7) disregarding court orders; and (8) continuing to produce documents in contempt of a court order.  As a result, the court found it appropriate to award costs against the solicitors for the respondents on a substantial indemnity basis to address the costs thrown away by the applicants. 

The case, and the laundry list of improper behaviour, is a good reminder to all counsel to think long and hard about tactics and strategy (no case is really worth sullying your own reputation and credibility). Lawyers also need to keep in mind that they are not just mouth pieces for their clients. Counsel should advise their clients of the minimum standard of behaviour, decorum and professionalism expected by the courts. A good way to control your client is to remind him/her that costs can be awarded against a party who makes frivolous claims, or engages in egregious behaviour. Of course, lawyers are clearly not immune from costs and must govern themselves accordingly. If a client refuses to listen or expects you to take a position that will be frowned upon by the court, it is time to get off the record. 

Justin

]]> http://estatelaw.hullandhull.com/2007/09/articles/blog-posts-hull-on-estates/the-costs-of-doing-business/ http://estatelaw.hullandhull.com/2007/09/articles/blog-posts-hull-on-estates/the-costs-of-doing-business/ Archived BLOG POSTS - Hull on EstatesCosts in Estate LitigationEstate Litigationcostsestate lawestates and trust Tue, 25 Sep 2007 00:30:18 -0500 nonley@hullandhull.com (Hull & Hull LLP)