Date: 20030326
Docket: T-2221-98
Neutral citation: 2003 FCT 348
Ottawa, Ontario, this 26th day of March, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ROLLS-ROYCE plc, ROLLS-ROYCE & BENTLEY MOTOR CARS LIMITED, and
BENTLEY MOTORS LIMITED
Plaintiffs
- and -
IAN D. FITZWILLIAM, ROLLS-ROYCE LIMITED,
ROLLS-ROYCE MOTOR CARS LIMITED and
BENTLEY MOTORS LIMITED
Defendants
REASONS FOR ORDER AND ORDER REGARDING COSTS
O'KEEFE J.
[1] This is a motion by the plaintiffs for:
1. An order reconsidering "costs of this action plus GST" awarded to the plaintiffs in the reasons for order and order issued in this proceeding on May 24, 2002, to include all costs of the plaintiffs' motions for interlocutory injunctions and summary judgment;
2. An order directing the assessment officer to award costs to the plaintiffs on an increased scale;
3. Costs of this motion; and
4. Such further and other relief as may be requested and this Honourable Court may grant.
[2] In my reasons for order in this application for summary judgment, I ordered that "The plaintiffs shall have their costs of this action plus GST." The plaintiffs in their draft order for summary judgment, at paragraph 12, requested that "The plaintiffs shall have their costs of this action on a solicitor-client basis plus GST." Besides not granting costs on a solicitor-client basis, I granted the costs requested by the draft order. For that reason, I am not prepared to reconsider my original order in this respect. In any event, although not necessary for this motion, it would appear that costs of this action would include the type of costs sought by the plaintiffs.
[3] Order directing the assessment officer to award costs to the plaintiffs on a increased scale
I have compared the offers to settle made by the plaintiffs to the defendants and I am of the opinion that the judgment obtained by the plaintiffs is more favourable than the offers to settle made by the plaintiffs dated April 19, 2001 and May 25, 2001. The judgment obtained by the plaintiffs included an award of damages or at their option, an accounting for profits, plus pre-judgment and post-judgment interest, and costs. Accordingly, the plaintiffs shall have the cost benefits provided in Rule 420.(1) of the Federal Court Rules, 1998, S.O.R./98-106. The double costs will commence on the date of service of the April 19, 2001 offer.
[4] The plaintiffs have requested costs for a second counsel at the hearing for summary judgment. I am prepared to grant this request based on the volume of material that was filed in this matter.
[5] The plaintiffs have also requested that I award them costs based on the higher end of Column V of Tariff B. I have considered the submissions of counsel for the plaintiffs and I am not persuaded to award costs based on the higher end of Column V of Tariff B. However, the jurisprudence of this Court does allow for the costs to be assessed in a higher column of Tariff B. I have considered the plaintiffs' submissions on this matter and I am prepared to order that the plaintiffs' costs be assessed at the top end of Column IV of Tariff B, because of the amount of preparation that was required on behalf of the plaintiffs.
[6] There shall be no order as to costs of this motion as success was divided.
ORDER
[7] IT IS ORDERED that:
1. The portion of the plaintiffs' motion requesting that I reconsider my order awarding "costs of this action plus GST" is dismissed.
2. The plaintiffs shall have the cost benefits provided in Rule 420(1) of the Federal Court Rules, 1998, supra, commencing on the date of service of the April 19, 2001 offer to settle.
3. The plaintiffs' costs shall be assessed at the top end of Column IV of Tariff B.
4. There shall be no order as to costs of this motion.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
March 26, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2221-98
STYLE OF CAUSE: ROLLS-ROYCE plc, ROLLS-ROYCE & BENTLEY
MOTOR CARDS LIMITED, and
BENTLEY MOTORS LIMITED
- and -
IAN D. FITZWILLIAM, ROLLS-ROYCE LIMITED,
ROLLS-ROYCE MOTOR CARS LIMITED and
BENTLEY MOTORS LIMITED
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, November 19, 2002
REASONS FOR ORDER AND ORDER REGARDING COSTS OF O'KEEFE J.
DATED: Wednesday, March 26, 2003
APPEARANCES:
Mr. Mark Biernacki
FOR PLAINTIFFS
Mr. Ian Fitzwilliam
FOR DEFENDANTS
SOLICITORS OF RECORD:
Smart and Biggar
Suite 1500, Box 111
438 University Avenue
Toronto, Ontario
M5G 2K8
FOR PLAINTIFFS
Mr. Ian Fitzwilliam In His Own Right
World Bar Association
Suite 1811, Minto Plaza
38 Elm Street
Toronto, Ontario
M5G 2K5
FOR DEFENDANTS
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