Special Costs Definition:
A scale of costs generally equivalent to solicitor and client costs and also approaching complete indemnity to the successful litigant.
Solicitor and Client Costs,
Terminology in use in some common law jurisdictions to distinguish an enhanced or increased costs award, similar to solicitor and client costs.
However, to ward against the confusion between solicitor and client costs as an award of costs by a trial judge, a term also used to refer, in law, to a solicitor's bill to his or her client, some jurisdictions prefer the term special costs.
For example, in British Columbia, in Conduct of Civil Litigation in British Columbia, the authors write:
"Special costs may be awarded where there has been misconduct by or on behalf of the unsuccessful party deserving of rebuke.
The purpose of such an award is not to indemnify the successful party against his entire expenses of litigation but to penalize the offending party."
In Fullerton, Justice Cumming of the Court of Appeal wrote:
"The judiciary and academic commentators have also recognized that an award of costs may serve additional functions beyond that of indemnification. Whereas party-and-party costs are designed to indemnify, special costs or costs awarded on a solicitor-and-client basis may be awarded on a higher scale as a penalty or deterrent for certain conduct....
"Special costs or solicitor-and-client costs are ... awarded when a court seeks to dissociate itself from some misconduct. Because the court is expressing its disapproval, the award must go beyond mere indemnity and enters the realm of punishment."
In Foundation, Justice Brenner wrote:
"Because special costs must ultimately be taxed on an objective basis and they are not necessarily the same as the actual solicitor-client fees paid, the court takes 80-90% of the actual fee bills as a rough estimate of the amount that would ultimately be awarded as special costs."
- Duhaime, Lloyd, The Law of Costs: Justice's Boogeyman
- Foundation Co. of Canada Ltd. v. United Grain Growers Ltd., 8 C.P.C. (4th) 354 (1996, BCSC)
- Fraser, P. and others, The Conduct of Civil Litigation in British Columbia, 2d. Ed. (Toronto: LexisNexis, 2009), Chapter 33, Volume 2.
- Fullerton v. Matsqui, 74 B.C.L.R. (2d) 311, 12 C.P.C. (3d) 319, 19 B.C.A.C. 284, 34 W.A.C. 284
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