By Richard Bogoroch and Tripta Chandler
November 14, 2008
Costs are an often overlooked aspect of civil litigation until the time comes to negotiate settlement. However, there are many occasions during the course of litigation, from the time the lawsuit is commenced to the motions stage and during trial preparation, where it is important for the parties to consider the various costs provisions and their impact on the decisions made during the litigation process.
It is not an understatement to state that the majority of the steps taken in a lawsuit can have costs consequences. The factors a court may take into consideration in awarding costs are broad and wideranging. Rule 57 of the Rules of Civil Procedure, in particular, grants the court broad discretion to consider the parties’ conduct in any of the steps of the litigation and to award or withhold costs based on whether the conduct of a party was, for example, frivolous, vexatious or had the effect of shortening or lengthening the proceeding. It is for this reason that it is essential to consider, at every stage of the litigation, your client’s exposure to costs when conceiving a litigation strategy.
This paper will deal with costs generally and how they can be claimed, as well as certain specific situations in which there are costs consequences to a particular course of action. Although the Rules of Civil Procedure establish a framework for costs, it should always be kept in mind that ultimately, the discretion of the court is paramount.
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