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Litigation...The Trial is Over - Now What?

Costs in a personal injury lawsuit or family law matter may be awarded to a successful party following a hearing/trial or throughout the court process, at the Presiding justice’s discretion, as long as the judge is satisfied the costs order will do justice between the parties.

Ashley Donald – July 2019

After the completion of a court hearing or trial, you may be entitled to, or liable for, court costs.

Costs are outlined in the Civil Procedure Rules at Rule 77 (“the Costs Rule”). Costs in a personal injury lawsuit or family law matter may be awarded to a successful party following a hearing/trial or throughout the court process, at the Presiding justice’s discretion, as long as the judge is satisfied the costs order will do justice between the parties.

Rule 77.01-02 states:

77.01     (1) The court deals with each of the following kinds of costs:

 (a) party and party costs, by which one party compensates another party for part of the compensated party’s expenses of litigation;

 (b) solicitor and client costs, which may be awarded in exceptional

circumstances to compensate a party fully for the expenses of litigation; 

(c) fees and disbursements counsel charges to a client for representing the

client in a proceeding. 

(2) Costs may be ordered, the amount of costs may be assessed, and counsel’s fees and disbursements may be charged, in accordance with this Rule.

 77.02     (1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.

 (2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 – Settlement.

Calculation of Costs

Costs may be awarded to a successful party, even if there is mixed success, based on the Tariffs that are included in Rule 77. A judge can order more or less than the Tariff, when the judge sees fit.

Some of the factors considered by the judge when ordering above or below the Tariffs are:

A general principle of costs awards is to provide the successful party with a “substantial contribution” to his or her fees and expenses of the litigation. This does not mean the successful party will be fully indemnified for his or her costs. Nova Scotia courts have held that “substantial contribution” is meant to be more than 50% and less than 100% of a lawyer’s reasonable bill.

In most personal injury lawsuits and family law matters, Tariff A will apply. In using the Tariff, we must first determine the complexity of the matter, then the “amount involved”. The “amount involved” for a family matter is calculated by attributing $20,000 for each day of trial. For example, a day and a half trial would have a $30,000 “amount involved”.  In addition to the Tariff amount, an additional $2,000 is commonly awarded for each day of trial.

The Tariff helps to determine the starting point for a potential costs award. The court must compare the amount calculated under the Tariff to the total legal fees paid by the successful party.  If the Tariff amount does not provide a substantial contribution to the legal fees incurred, the court will analyze the factors set out above to determine whether an additional amount should be award.

Though every case has a party that is more successful than the other, not all cases will warrant costs awards. Ultimately, the judge has full discretion as to whether, and how much, costs are to be ordered.

Costs Quick Hitters

Even when on a legal aid certificate, you may be ordered to pay costs, at the discretion of the judge.

Court costs can be ordered to be paid directly to Nova Scotia Legal Aid on your behalf. You will not receive the costs payment, as it will be paid to Nova Scotia Legal Aid.

If you are unable to pay court costs and this is a barrier to you initiating a court proceeding, you can file a preemptive motion under Rule 77.04.

You can also do any of the following to help protect against a costs order:

  1. File all your documents on time with the court and the other party;
  2. Promptly respond to all correspondence from the other party and the court;
  3. Attend all appearances you are directed or ordered to attend;
  4. Provide reasonable settlement offer(s) to the other party; and
  5. Maintain a reasonable position on all issues.

Costs can be awarded at any time during the court proceeding.

This blog is not intended to be a comprehensive treatment of this topic or legal advice. Every case turns on its specific facts. If you or a family member have questions about potential cost consequence or costs order, then we recommend you speak with one of our MDW Law lawyers for further advice. 

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