Date: 20070705
Docket: T-1532-05
Citation: 2007 FC 708
Winnipeg, Manitoba,
July 5, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ELI
LILLY CANADA INC.
Applicant
and
NOVOPHARM LIMITED and
THE MINISTER OF HEALTH
Respondents
ELI LILLY AND COMPANY LIMITED
Respondent/Patentee
REASONS FOR
JUDGMENT AND JUDGMENT AS TO COSTS
HUGHES J.
[1]
These
Reasons and Judgment are directed to the issue of costs which was left to be
spoken to following my decision in this proceeding dated June 5, 2007. Counsel
for the Applicant and the Respondent Novopharm have provided written submissions
as directed by that decision.
[2]
Consideration
must be given to the following issues:
1. Level of Costs
2. Various Grounds
Raised as to Invalidity
3. Experts
4. Motions
5. Number
of Counsel at Trial and at Examinations
6. Effect of the First
(abandoned) NOC
1. Level
[3]
Applicants
say that Column I or II of the Tariff is inappropriate for taxation of costs,
the Respondent Novopharm wants at or near a solicitor-client level. Each accuse
the other of abuse and overzealousness.
[4]
This
was hard fought piece of litigation. The legal issues were complex. The facts
were many and detailed. There was procedural manoeuvring on each side.
[5]
Column
IV at the middle is the appropriate level for taxation of costs.
2. Various
Grounds Raised as to Invalidity
[6]
Novopharm
was successful in the result, on one ground alleged as to invalidity, namely
sufficiency. Other grounds including anticipation, obviousness, double patenting
and section 53 were dealt with by Justice Gauthier in her decision in another
proceeding involving the same patent released only a few weeks before the
hearing of this matter. Novopharm’s counsel cannot be faulted for pursuing
these matters before trial. However, when it came to argument at trial the
time could have been shortened by reference to Justice Gauthier’s decision.
[7]
Further,
at trial Novopharm largely abandoned argument as to the dog study save for
reliance on its factum. The argument as to section 53, given the evidence, was
sufficiently weak that it should not have been made.
[8]
Taking
all of this into consideration, I will allow Novopharm to tax three trial days
and eighty percent of its pre-trial costs not otherwise dealt with by a judge
or prothonotary hearing motions in this case. Included in pre-trial costs is
time spent in examination and cross-examination of witnesses and preparation
for the same.
3. Experts
[9]
In
my reasons of June 5, 2007 I allowed Novopharm to tax costs of five only of its
expert witnesses. It could choose which five. I see no reason for change in
that regard.
[10]
As
to fees changed by such experts they should be reasonable and be the lesser of
actual fees charged or the rate that was charged by Novopharm’s senior counsel
for services for the same period of time as spent by the experts. Expert rates
should not get out of hand. Disbursements must be reasonable and not
extravagant.
4. Motions
[11]
Where
a motion has been disposed of with an Order as to costs, that Order prevails
and, unless otherwise stated in such Order, costs are at the Column III level.
Where costs have been left to disposition at trial, they will be awarded at the
middle of Column IV.
5. Number of
Counsel at Trial and at Examination
[12]
Novopharm
had one senior counsel and two junior counsel gowned at trial. All three made
substantive arguments to the Court. Eli Lilly had one senior counsel and three
junior counsel gowned. Only senior counsel made substantive argument. I allow
Novopharm to tax costs for one senior counsel and two junior counsel at trial
but, as previously stated, for only three days of trial.
[13]
On
examination of Novopharm witnesses I will allow for the attendance of one
counsel only. The rate is that of senior counsel. In conducting
cross-examination of Eli Lilly witnesses I allow for one senior counsel and, if
in attendance, one junior counsel.
6. Effect of
the First (Abandoned) NOA
[14]
This
matter has been dealt with in the disposition of costs in the first NOA. While
Eli Lilly argues that Novopharm may have achieved a strategic advantage, this
is not a matter for consideration of costs in these proceedings.
JUDGMENT
I hereby
adjudge that Novopharm’s entitled to tax its costs in these proceedings in
accordance with these Reasons and those of June 5, 2007.
"Roger
T. Hughes"
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