Duhaime's Law Dictionary


Increased Costs Definition:

A term of statute of costs which are in excess of party and party costs and which may equal or come close to completely indemnify the successful litigant.

Related Terms: Costs, Double Costs, Special Costs

Costs were not known to the common law; necessarily, then, nor was the notion of increased costs. And so it is, where it exists and is available to the Court as a tool of litigation control, a creature of statute. Jurisdictions which allow costs have mostly evolved to add a further increment of penalty upon losing litigants in some circumstances, especially where that litigant may have, for example, misused the justice system in some regard.

 

In the Canadian province of British Columbia, for example, the tool of increased costs is defined and provided for in the Rules of Court of the Supreme Court. In National Hockey League v. Pepsi-Cola, Justice Wood of the British Columbia Court of Appeal merely paraphrased the relevant rule when he wrote:

"The discretion to award increased costs may be exercised where the court determines that for any reason an award of ordinary costs would lead to an unjust result."

Increased CostsUpon that, the courts have been called upon to further shed light on circumstances in which an application for increased costs might be available to a successful litigant.

In Edgar v Freedman, Madam Justice Rowles of the British Columbia Court of Appeal wrote, at ¶79:

"My impression is that a quite significant disparity must be found to trigger an order for increased costs and even then, such an order is by no means likely to be made as of course or automatically. Usually, there must be found special importance, difficulties or complication associated with the litigation or ... conduct of a litigant which the court finds deserving of a penalty in added costs."

In Neudorf, Justice Cohen of the British Columbia Supreme Court wrote, at ¶9:

"Special costs, formerly referred to as solicitor-client costs, may be appropriately awarded when there is some reprehensible conduct in the proceedings that makes such costs desirable as a form of chastisement. Increased costs will only be awarded if there is some unusual feature in the case or misconduct in addition to a significant disparity between ordinary and special costs which justifies greater indemnity than provided by ordinary costs."

In Rieta, Justice Donald wrote, at ¶49-50:

"[I]ncreased costs are primarily concerned with providing a just indemnity to the successful party; whereas double costs are a form of penalty against the party who did not accept an offer to settle. The objectives and philosophy behind the two are different....

Increased costs will only be awarded if there is some unusual feature in the case or misconduct which justifies greater indemnity than provided by ordinary costs."

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