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RULE 55
COSTS

Analysis


              RULE 55
COSTS

              I. Party and Party Costs: General

 
55.01   Definition

 
55.02   Costs in discretion of Court

 
55.03   When costs follow the event or are determined by the rules

 
55.04   Party and party costs

 
55.05   Costs on interlocutory applications

 
55.06   Costs of a proceeding transferred to the Supreme Court

 
55.07   Costs on appeal

 
55.08   Costs when application abandoned

 
55.09   Costs agreed on settlement

 
55.10   Costs of a person under disability

 
55.11   Costs of trustee, personal representative or mortgagee

 
55.12   Costs of member of class represented by own solicitor

 
55.13   Costs of several proceedings on one bond, etc.

 
55.14   Costs arising from misconduct or neglect

              II. Solicitor and Client Costs: General

 
55.15   Costs to be reasonable

 
55.16   Fee agreement

 
55.17   Contingent fee agreement must be in writing

 
55.18   Review of agreement by taxing officer or Court

 
55.19   Void provisions in agreement

 
55.20   Death or incapacity of a solicitor

 
55.21   Costs payable out of trust funds

 
55.22   Payment in advance or security taken

 
55.23   Charging property for fees

 
55.24   Proceeding for costs

              III . Taxation of Costs

 
55.25   Appointment for taxation

 
55.26   Production of bill of costs by other parties

 
55.27   Proof of disbursements

 
55.28   Failure to attend on taxation, etc.

 
55.29   Powers of taxing officer

 
55.30   Disallowance of costs by taxing officer

 
55.31   Costs against fund or estate

 
55.32   Certificate of taxing officer

 
55.33   Enforcement of costs

 
55.34   Special allowances

              IV. Appeals from Taxation

 
55.35   Time and contents of appeal

 
55.36   Appeal confined to items specified

 
55.37   Powers of judge on appeal

 
55.38   Amendment of execution order

Appendix


I. Party and Party Costs: General

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Definition

55.01. In Rule 55, "solicitor" means a barrister and solicitor.

1986 c42 Sch D rule 55.01

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Costs in discretion of Court

55.02. (1) Notwithstanding the provisions of rules 55.02 to 55.14, the costs of any party, the amount thereof, the party by whom, or the fund or estate or portion of an estate out of which they are to be paid, are in the discretion of the Court, and the Court may

             (a)  award a gross sum in lieu of, or a sum in addition to any taxed costs;

             (b)  allow a percentage of the taxed costs or allow taxed costs from or up to a specific stage of a proceeding; or

             (c)  direct whether or not any costs are to be set off.

             (2)  The Court in exercising its discretion as to costs may take into account

             (a)  any payment into Court and the amount of the payment; or

             (b)  any offer of contribution as is mentioned in rule 12.11 which is brought to its attention in pursuant to a reserved right to do so.

             (3)  The Court may deal with costs at any stage of a proceeding.

1986 c42 Sch D rule 55.02

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When costs follow the event or are determined by the rules

55.03. (1) Unless the Court otherwise orders, the costs of a proceeding or of any issue of fact or law therein shall follow the event.

             (2)  Unless the Court otherwise orders, the costs of and occasioned by

             (a)  an amendment made under Rule 15 shall be borne as provided by rule 15.10, by the party making the amendment;

             (b)  an application to extend the time fixed by any rule for serving or filing any document, or doing any other act, including the costs of any order made on the application, shall be borne by the party making the application;

             (c)  proving the truth of any fact or the authenticity of any document, that a party unreasonably denies or refuses to admit, shall be borne as provided in rule 33.04, by that party; and

             (d)  a proceeding tried with a jury shall follow the event as provided in rule 45.10.

             (3)  Where a party discontinues a proceeding, withdraws any cause of action therein, or withdraws the defence or any part thereof, the costs are determined as provided in rule 19.03.

             (4)  Where money is paid out of Court, the costs are determined as provided in rule 20.04.

1986 c42 Sch D rule 55.03

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Party and party costs

55.04. (1) Unless otherwise ordered, the costs between parties shall be determined by a taxing officer according to Column 1 of the Scale of Costs in the Appendix to this Rule, where

             (a)  default judgment is entered in a claim for a liquidated demand only, under rule 16.01(2)(a); or

             (b)  an uncontested order is entered under Rule 56A.

             (2)  Where paragraph (1) does not apply, the costs between parties, unless otherwise ordered, shall be determined by a taxing officer according to Column 3 of the Scale of Costs in the Appendix to this Rule.

             (3)  The Court may award costs to be taxed in accordance with any column or combination of columns under the Scale of Costs in the Appendix to this Rule.

             (4)  In exercising its discretion under this Rule, the Court may consider

             (a)  the amounts claimed and the amounts recovered;

             (b)  the importance of the issues;

             (c)  the complexity, difficulty or novelty of the issues;

             (d)  the manner in which the proceeding was conducted, including any conduct that tended to shorten or unnecessarily lengthen the duration of the proceeding;

             (e)  the failure by a party to admit anything that should have been admitted;

              (f)  the proportion of the services rendered prior to the date the amendment to this paragraph introducing a Scale of Costs where costs are taxed according to a column or combination of columns came into force;

             (g)  seniority at the bar of counsel; and

             (h)  any other relevant matter.

             (5)  A taxing officer may

             (a)  disallow individual items in a bill of costs; and

             (b)  allow an item of costs not provided for, either expressly or by implication, by the Scale of Costs in the Appendix to this Rule.

             (6)  Where a service provided in an appeal to the Court of Appeal is not listed in the Appendix to this Rule under "F. Appeals to the Court of Appeal", costs of that service shall be determined in accordance with the other provisions of this Rule with the necessary changes.

             (7)  This rule applies to orders for costs made on or after July 1, 2011.

45/11 s1

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Costs on interlocutory applications

55.05. (1) Unless the Court otherwise orders, the costs of any interlocutory application, whether ex parte or otherwise, are costs in the cause and shall be taxed upon the same scale as the general costs of the proceeding.

             (2)  Where an ex parte order does not contain any direction as to costs, the taxing officer shall deal with the costs of the application and order as provided in rule 55.05(1).

1986 c42 Sch D rule 55.05

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Costs of a proceeding transferred to the Supreme Court

55.06. The Court may deal with the costs of a proceeding transferred or removed to the Court from any other court or tribunal, including the costs arising both before and after the transfer or removal, as it deems just.

1986 c42 Sch D rule 55.06

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Costs on appeal

55.07. The costs of an appeal and of the proceeding in the court below shall be as directed by the order of the Court of Appeal, or in default of direction shall be the same as that applicable under the order appealed from.

1986 c42 Sch D rule 55.07

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Costs when application abandoned

55.08. (1) Unless the Court otherwise orders, when a party who serves an application does not set the application down for hearing the party shall be deemed to have abandoned it, and the opposite party is thereupon entitled without an order to the costs of application.

             (2)  A party, who serves an application, may countermand it by notice served on the opposite party who is thereupon entitled to the costs of the application.

             (3)  In either of the cases referred to in rule 55.08(1) and rule 55.08(2), the costs may be taxed without an order upon the production of the application served, with an affidavit that the application was not set down or the notice of countermand was served, and, if the costs are not paid within four days from taxation, the party entitled thereto may issue an execution therefore.

1986 c42 Sch D rule 55.08

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Costs agreed on settlement

55.09. Where a proceeding is settled on the basis that any party is to pay or recover costs and the amount of costs is not determined by the settlement, then upon the filing of a consent signed by the party agreeing to pay the costs, the costs shall be taxed by the taxing officer upon application of any party in the same manner as if an order had been made for taxation.

1986 c42 Sch D rule 55.09

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Costs of a person under disability

55.10. Where the Court appoints a guardian ad litem of a person under disability, the Court may direct that the costs incurred in the performance of the duties of the guardian ad litem are to be borne and paid by the parties or some one or more of the parties, or out of any fund in Court in which the person under disability has an interest and may give directions for the payment or allowance of costs as are just.

1986 c42 Sch D rule 55.10

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Costs of trustee, personal representative or mortgagee

55.11. (1) Where a person is a party in the capacity of trustee, personal representative or mortgagee, that person shall, unless the Court otherwise orders, be entitled to costs, in so far as they are not recovered from or paid by any other person, out of the fund held by the trustee or personal representative, or out of the mortgaged property.

             (2)  Where a trustee, executor, administrator or mortgagee

             (a)  has acted unreasonably;

             (b)  has acted for his, her or its own benefit rather than in his, her or its representative capacity; or

             (c)  has participated in a proceeding unnecessarily because his, her or its interest is small, remote or sufficiently protected by any other interested party,

the Court may order the costs under rule 55.11(1) not to be paid out of the fund or mortgaged property.

1986 c42 Sch D rule 55.11

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Costs of member of class represented by own solicitor

55.12. Where any person in a class that is represented by one solicitor, insists on being represented by a different solicitor, that person shall pay the costs of that person's own solicitor and any costs occasioned to any party by being represented by that person's own solicitor.

1986 c42 Sch D rule 55.12

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Costs of several proceedings on one bond, etc.

55.13. (1) Unless the Court otherwise orders, where several proceedings are brought on the one bond, recognizance, promissory note, bill of exchange or other instrument, against the maker and endorser of a note, or against the drawer, acceptor or endorser of a bill of exchange, there shall be collected or recovered the costs taxed in one proceeding only, and the actual disbursements only in the other proceeding, but this provision shall not extend to any costs recoverable on any interlocutory proceeding.

             (2)  Where the parties entitled to costs under rule 55.13(1) cannot agree on the division of the taxed costs, they shall be divided as the Court may order.

1986 c42 Sch D rule 55.13

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Costs arising from misconduct or neglect

55.14. (1) Where any thing is done or an omission is made, improperly or unnecessarily, by or on behalf of a party, the Court may order

             (a)  that any cost arising from the act or omission not be allowed to the party;

             (b)  the party to pay the costs of any other party occasioned by the act or omission; or

             (c)  a taxing officer to inquire into the act or omission with power to order or disallow any costs as provided in rule 55.14(1)(a) and rule 55.14(1)(b).

             (2)  Where in a proceeding, costs are incurred improperly, or without reasonable cause, or arise because of undue delay, neglect or other default, the Court may, when the solicitor whom it considers to be responsible, whether personally or through a servant or agent, is before the Court or has notice, make an order

             (a)  disallowing the costs as between the solicitor and the solicitor's client;

             (b)  directing the solicitor to repay to his or her client costs which the client has been ordered to pay to any other party;

             (c)  directing the solicitor personally to indemnify any other party against costs payable by the party; or

             (d)  directing a taxing officer to inquire into the act or omission, with power to order or disallow any costs as provided in rule 55.14(2)(a) to rule 55.14(2)(c).

1986 c42 Sch D rule 55.14

II. Solicitor and Client Costs: General

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Costs to be reasonable

5 5.15. (1) A solicitor is entitled to such compensation from a client, who is a party, as is reasonable for the services performed, having regard to

             (a)  the nature, importance and urgency of the matters involved;

             (b)  the circumstances and interest of the person by whom the costs are payable;

             (c)  the fund out of which they are payable;

             (d)  the general conduct and costs of the proceeding;

             (e)  the skill, labour and responsibility involved; and

              (f)  all other circumstances, including, to the extent hereinafter authorized, the contingencies involved.

             (2)  The charges of a solicitor for services performed by the solicitor under rule 55.15(1) are, notwithstanding any agreement to the contrary, subject to taxation as provided by Rule 55.

1986 c42 Sch D rule 55.15

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Fee agreement

55.16. A solicitor may, with respect to an intended or existing proceeding, make an agreement with a client for the amount and manner of payment of the whole or any part of past or future services, fees, charges or disbursements rendered and incurred, or to be rendered and incurred, by the solicitor with respect to the proceeding, and the form of payment may consist of a gross sum, commission, percentage or otherwise in an amount which may be the same, greater or less than that which the solicitor normally receives as remuneration, subject however to taxation under Rule 55.

1986 c42 Sch D rule 55.16

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Contingent fee agreement must be in writing

55.17. (1) Where under an agreement referred to in rule 55.16, a solicitor's compensation is dependent or contingent, in whole or in part, upon the successful disposition of the subject matter, then

             (a)  the agreement shall be in writing and signed by the client or the client's authorized agent; and

             (b)  a copy of the signed agreement shall be provided to the client.

             (2)  The agreement shall contain

             (a)  the name and address of each client;

             (b)  the name and address of the solicitor;

             (c)  a statement of the nature of the claim;

             (d)  a statement of the contingency upon which the compensation is to be paid, and whether and to what extent the client is to be liable to pay compensation otherwise than from amounts collected by the solicitor;

             (e)  a statement that reasonable contingent compensation is to be paid for the services and the maximum amount or rate which the compensation is not to exceed after deduction of all reasonable and proper disbursements; and

              (f)  a statement to the following effect;

"This agreement may be reviewed by a taxing officer at the client's request, and may either at the instance of the taxing officer or the client be further reviewed by the Court, and either the taxing officer or the Court may vary, modify or disallow the agreement."

             (3)  [Rep. by 88/12 s3]

             (4)  Where an agreement as mentioned in paragraph (1) does not comply with paragraphs (1) and (2), the solicitor is, upon the successful disposition of the subject matter, entitled only to the compensation as would have been payable in the absence of a contingency arrangement and without regard to the contingency.

1986 c42 Sch D rule 55.17; 88/12 s3

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Review of agreement by taxing officer or Court

55.18. (1) Any agreement as mentioned in rule 55.16 may, at any time after its making until the expiry of six months from the last date on which a solicitor has received, on the solicitor's own account, the fee or any part of it, be reviewed by the taxing officer at the instance of the client.

             (2)  At any time while the agreement is before the taxing officer or within ten days after the taxing officer has given his or her decision on review, the taxing officer may, and on the request of the client shall, refer the agreement to the Court by transmitting all the material before the taxing officer to the Court.

         (2.1)  Upon referral of the agreement to the Court pursuant to paragraph (2), the Registrar shall obtain an appointment for the review and notify the solicitor and the client of the appointed time.

             (3)  The Court or taxing officer has power on review to

             (a)  approve the agreement;

             (b)  vary, modify or disallow all or any of the provisions of the agreement and if the agreement is so disallowed, any amount payable to the solicitor shall be determined in accordance with rule 55.17(4); or

             (c)  exercise the powers which a taxing officer has on the taxation of a solicitor and client bill of costs in a proceeding.

1986 c42 Sch D rule 55.18; 36/14 s72

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Void provisions in agreement

55.19. (1) A provision in an agreement respecting solicitor and client fees which purports to

             (a)  relieve a solicitor from liability for negligence or other liability to which the solicitor might be subject as a solicitor; or

             (b)  provide that a proceeding cannot be abandoned, discontinued or settled without the consent of the solicitor,

is void.

             (2)  Notwithstanding anything in an agreement to the contrary, a client may change a solicitor before the conclusion of the retainer.

1986 c42 Sch D rule 55.19

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Death or incapacity of a solicitor

55.20. (1) Where a solicitor dies or becomes incapable of acting before the solicitor's retainer has been completely performed by the solicitor, an application may be made by or on behalf of either party to the taxing officer to determine the amount, if any, due in respect of the services rendered under the retainer and, subject to rule 55.20(2), the taxing officer in determining the amount shall have regard to terms of any agreement between the parties.

             (2)  Where an agreement provides that payment is to be contingent, in whole or in part, upon the successful disposition of the subject matter, the taxing officer has the powers provided by rule 55.18 or may refuse any compensation, and no monies in respect of the agreement are payable until the disposition has been made.

             (3)  Where a client changes or discharges a solicitor before the conclusion of the retainer, the solicitor shall be deemed to have become incapable of acting within the meaning of rule 55.20(1).

             (4)  Where a client personally settles any matter which is the subject of an agreement as described in rule 55.20(2), without changing or discharging a solicitor, the client shall be deemed to have discharged the solicitor within the meaning of rule 55.20(3).

             (5)  Where a client discontinues or abandons any matter which is the subject of an agreement as described in rule 55.20(2) without changing or discharging a solicitor, then the solicitor may apply to tax his or her costs against his or her client, and the taxing officer may, if the taxing officer finds the discontinuance or abandonment to be wholly unreasonable, allow to the solicitor reasonable compensation therefore, and has the powers provided by rule 55.18.

             (6)  Payment of any amount found to be due under rule 55.20 may be enforced in the same manner as if the solicitor had completely performed his or her retainer, except that in any case falling within rule 55.20(2), payment may not be enforced prior to the successful disposition, and then only with the leave of the Court.

1986 c42 Sch D rule 55.20

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Costs payable out of trust funds

55.21. Costs payable out of or chargeable against any trust, estate, trust fund or mortgaged property, shall not be so paid as against any person interested therein, unless

             (a)  the costs have been taxed;

             (b)  any interested person is sui juris and has consented to the payment; or

             (c)  the Court has fixed the amount of, and directed the payment or charge.

1986 c42 Sch D rule 55.21

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Payment in advance or security taken

55.22. A solicitor may obtain payment in advance or take security for his or her future fees, charges or disbursements, subject to right of taxation.

1986 c42 Sch D rule 55.22

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Charging property for fees

55.23. (1) The Court may, on the application of a solicitor, declare that the solicitor is entitled to a charge for the solicitor's proper fees and disbursements in a proceeding upon the property recovered or preserved through the solicitor's instrumentality in the proceeding and may make such order as is just for the payment of the fees and disbursements out of the property.

             (2)  Nothing shall defeat any such charge referred to in rule 55.23(1) unless the property has been disposed of to a bona fide purchaser for value without notice.

             (3)  An order shall not be made under rule 55.23(1) where the right of a solicitor to recover payment of his or her fees and disbursements is barred by any statute of limitations.

1986 c42 Sch D rule 55.23

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Proceeding for costs

55.24. A solicitor may bring a proceeding for any costs due to the solicitor, but

             (a)  no judgment shall be entered on default; and

             (b)  no costs shall be allowed,

except upon the order of the Court, that may direct the taxation of the costs.

1986 c42 Sch D rule 55.24

III . Taxation of Costs

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Appointment for taxation

55.25. (1) A party entitled to tax any costs or to require any costs to be taxed shall secure an appointment therefore in writing from the taxing officer and the party shall deposit with the taxing officer a copy of the proposed bill of costs.

             (2)  A copy of the appointment, together with a copy of the bill to be taxed, shall be served upon every party interested in the taxation at least two clear days before the time fixed for the taxation, unless the party is absconding or absent out of the jurisdiction or judgment has been entered by default when notice need not be given.

             (3)  A copy of the appointment, together with a copy of the bill to be taxed, may be served personally, or by being posted by ordinary mail addressed to the opposite party at the opposite party's usual address and mailed in sufficient time so that it may reach the opposite party two clear days before the date of taxation by the usual course of post or by being delivered to the solicitor for the opposite party, and the service may be proved by affidavit.

1986 c42 Sch D rule 55.25

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Production of bill of costs by other parties

55.26. (1) Where a copy of an appointment for taxation and a copy of a bill of costs is served upon a party

             (a)  entitled to costs;

             (b)  entitled to set off any other costs against the amount of the bill to be taxed; or

             (c)  required to bring in a bill of any other costs for the purpose of ascertaining the amount of the bill to be taxed,

the party so served shall bring with that party a bill for the taxation of the party's costs at the appointed time.

             (2)  Where a party required to bring in a bill of costs under rule 55.26(1) fails to do so, the taxing officer may tax the costs of any other party, and

             (a)  allow the defaulting party a nominal or other sum for costs;

             (b)  direct that the defaulting party forfeits the right to any costs; or

             (c)  defer the taxation of the defaulting party's costs.

             (3)  Proceedings under rule 55.26(1) may be instituted by any party liable to pay costs or whose costs depend upon the determination of any other party's costs.

1986 c42 Sch D rule 55.26

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Proof of disbursements

55.27. Disbursements, other than fees paid to officers of the Court, shall not be allowed unless the liability therefore is established either by the solicitor conducting the matter, or by affidavit.

1986 c42 Sch D rule 55.27

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Failure to attend on taxation, etc.

55.28. (1) Where a party

             (a)  has been served with a copy of an appointment for taxation and a copy of the bill of costs; or

             (b)  is absconding or absent out of the jurisdiction,

the taxing officer may proceed with the taxation in the party's absence, upon proof of service of the documents or of the absconding or absence.

             (2)  Where a party entitled to costs refuses or neglects to bring in the bill of costs for taxation or to procure the bill to be taxed and thereby prejudices any other party, the taxing officer shall certify the costs of the other parties and certify such refusal or neglect, or may allow the party refusing or neglecting a nominal or other sum for such costs, so as to prevent any other party from being prejudiced by the refusal or neglect.

1986 c42 Sch D rule 55.28

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Powers of taxing officer

55.29. On a taxation of costs relating to a proceeding, a taxing officer may

             (a)  take evidence either by affidavit or viva voce upon oath or affirmation;

             (b)  direct the production of books, papers and documents;

             (c)  require a copy of an appointment for the taxation to be given to any person who may be interested in the taxation or in the fund or estate out of which the costs are payable;

             (d)  give directions as to the manner of service of a copy of an appointment for taxation and the bill of costs;

             (e)  require any party or person to be represented by a separate solicitor;

              (f)  unless the Court otherwise orders, enlarge or abridge, from time to time, the time appointed under any rule or order for any proceeding before the taxing officer, whether the application therefore is made before or after the expiration of the appointed time; or

             (g)  where a party entitled to receive costs is liable to pay costs to any other party, adjust the costs by way of deduction or set-off.

1986 c42 Sch D rule 55.29

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Disallowance of costs by taxing officer

55.30. (1) Upon a taxation between party and party, a taxing officer shall not allow the costs of any proceedings

             (a)  unnecessarily taken;

             (b)  not calculated to advance the interests of the party on whose behalf the proceedings were taken;

             (c)  incurred through negligence or mistake; or

             (d)  that do not appear to have been necessary or proper for the attainment of justice or defending the rights of the party.

             (2)  Upon a taxation between a solicitor and the solicitor's client in a proceeding the taxing officer may allow the costs of any unnecessary proceedings where the taxing officer is of the opinion that

             (a)  the solicitor could consider they were conducive to the interests of his or her client; or

             (b)  the proceedings were taken on the instructions of the client after being informed by the client's solicitor that they were unnecessary and not calculated to advance the client's interests.

1986 c42 Sch D rule 55.30

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Costs against fund or estate

55.31. The taxing officer may

             (a)  direct what parties are to attend before the taxing officer on the taxation of costs to be borne by a fund or estate; or

             (b)  disallow the costs of any party whose attendance the taxing officer considers unnecessary in consequence of the interest of the party in the fund or estate being small, or remote, or sufficiently protected by any other interested party.

1986 c42 Sch D rule 55.31

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Certificate of taxing officer

55.32. (1) On a taxation, the taxing officer shall certify the amount of the costs taxed by the taxing officer for and against each party or person.

             (2)  Subject to appeal and the terms contained in the certificate or in the order under which the taxation has been made, any certificate given upon any taxation is final and conclusive as to the amounts therein mentioned against any person who received notice of the taxation.

1986 c42 Sch D rule 55.32

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Enforcement of costs

55.33. (1) Where costs are taxed against a party, an execution order may be issued for the recovery thereof.

             (2)  Costs recovered against a person who is not a party, may be sued for and recovered as any other debt and, subject to appeal, and the bill duly taxed shall be conclusive evidence against any person who received notice of the taxation that the amount allowed on taxation is the correct amount.

1986 c42 Sch D rule 55.33

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Special allowances

55.34. The following special allowances and general regulations shall apply to all taxations in a proceeding.

             (1)  [Rep. by 45/11 s2]

             (2)  When there are several deponents of an affidavit to be sworn or affirmed, or it is necessary for the purpose of the affidavit being sworn or affirmed to go a distance, or to employ an agent, such reasonable allowance may be made therefore as the taxing officer thinks fit.

             (3)  [Rep. by 45/11 s2]

             (4)  Where the same solicitor or firm of solicitors is employed by two or more plaintiffs or defendants and separate pleadings are delivered or other proceedings had by or for any of the parties separately, the taxing officer, on the taxation of the bill of costs of the solicitor or solicitors involved, may disallow any costs occasioned by separate pleadings or other proceedings that the taxing officer considers to have been unnecessarily or improperly incurred.

             (5)  Any just and reasonable charges and expenses as appear to have been properly incurred in procuring evidence and the attendance of witnesses are to be allowed.

             (6)  Where, by reason of the non-attendance of any party or the neglect of any party in not being prepared with any proper evidence, account or other proceeding, a proceeding is adjourned without any useful progress being made, the Court may order such an amount of costs, if any, as it thinks reasonable to be paid to the party attending by the party so absent or neglectful, or by the party's solicitor personally, and the party so absent or neglectful is not to be allowed any fee as against any other party, or any estate or fund in which any other party is interested.

             (7)  [Rep. by 45/11 s2]

             (8)  [Rep. by 45/11 s2]

1986 c42 Sch D rule 55.34; 45/11 s2

IV. Appeals from Taxation

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Time and contents of appeal

5 5.35. (1) A person pecuniarily interested in the result of a taxation may, not later than ten days after that person has received notice of a certification on taxation, appeal the taxation as herein provided.

             (2)  An appellant shall appeal to a judge of the General Division by filing with the taxing officer and the Court a notice of appeal and serving it upon every other party.

             (3)  A notice of appeal shall specify any item objected to, the grounds of the objection and the date of the hearing of the appeal.

             (4)  A notice of appeal shall be

             (a)  returnable within fifteen days from the date of filing with the Court, and

             (b)  served on all parties directly affected by the appeal not less than three days before the date set for the hearing of the appeal.

1986 c42 Sch D rule 55.35; 30/10 s12; 36/14 s73

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Appeal confined to items specified

55.36. (1) Unless the Court otherwise orders, an appeal from a taxation shall be confined to the items and grounds specified and shall be heard on the evidence before the taxing officer.

             (2)  The decision of the taxing officer shall be final and conclusive on all matters which have not been appealed from.

1986 c42 Sch D rule 55.36

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Powers of judge on appeal

55.37. On an appeal from a taxation , the Court may

             (a)  exercise all the powers of a taxing officer;

             (b)  review any discretion exercised by the taxing officer as fully as if the taxation were made by the Court in the first instance; or

             (c)  grant such order on the application, including the costs of appeal and taxation, as is just.

1986 c42 Sch D rule 55.37

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Amendment of execution order

55.38. (1) If an execution order has been issued for costs which are reduced or increased on appeal, the execution order shall be returned to the Court for amendment in accordance with the order made upon the appeal.

             (2)  Where the amount as originally taxed by the taxing officer has been paid and after payment is reduced on appeal, the Court hearing the appeal may order the return of the excess by the party or solicitor who has received it, and the order may be enforced as an order of the Court.

1986 c42 Sch D rule 55.38; 36/14 s74

Appendix

Scale of Costs

(Rule 55)

I.  General

        1. A party seeking an assessment of costs shall prepare a bill of costs, indicating the service, the column and the number of units, and where the service is based on days or half days, shall indicate the number of days or half days.

        2. A bill of costs may include a list of disbursements, which shall be verified by invoice or by affidavit.

        3. In this Scale of Costs:

             (a)  a "day" or "half day" includes a part thereof; and

             (b)  where services are provided more than once for the same listed item, for example, attendance on more than one examination for discovery, the services for each item on each occasion may be assessed separately in a bill of costs.

        4. The total value of services allowed shall be calculated by the taxing officer by multiplying the total number of units by the unit value in effect on the date of the assessment.

        5. The unit value is $100.00 effective on the day this revised Scale of Costs in which costs are taxed according to a column or combination of columns came into force.

        6. The unit value may be adjusted by amendment of this Rule.

II.  Services

Services

Number of Units

 

Column
1

Column
2

Column
3

Column
4

Column
5

A.  Originating documents and other pleadings

 

 

 

 

 

               1.  Preparation and filing of statement of claim, originating application, petition, or other originating document

1.

1.5

2.0

2.5

3.0

               2.  Preparation and filing of defence, counterclaim, third party notice including statement of claim, defence to third party proceeding, answer to petition including counter petition, response or reply under Rule 56A or any other pleading required by law

1.0

1.5

2.0

2.5

3.0

               3.  Preparation and filing of a financial statement or property statement under Rule 56A

1.0

1.5

2.0

2.5

3.0

               4.  Preparation and filing of amendment to any pleading

0.5

0.75

1.0

1.25

1.5

B.  Applications

 

 

 

 

 

               5.  Preparation and filing of interlocutory application

1.0

1.5

2.0

2.5

3.0

               6.  Preparation and filing of affidavit

1.0

1.5

2.0

2.5

3.0

               7.  Preparation of memorandum of authorities

1.0

1.5

2.0

2.5

3.0

               8.  Preparation of memorandum of fact and law for application

2.0

3.0

4.0

5.0

6.0

               9.  Counsel fee on uncontested application

1.0

1.5

2.0

2.5

3.0

             10.  Counsel fee on contested  application, per half day

2.5

5.0

8.5

11.5

15.0

C.  Discovery and Examinations

 

 

 

 

 

             11.  Preparation and filing   list of documents

1.0

1.5

2.0

2.5

3.0

             12.  Preparation of demand for particulars, interrogatories, notice to disclose under Rule 56A, notice to reply to written questions under Rule 56A or similar documents

1.0

1.5

2.0

2.5

3.0

             13.  Preparation of reply to demand for particulars, answer to interrogatories, answer to notice to disclose under Rule 56A, answer to notice to reply to written questions under Rule 56A or similar documents

1.0

1.5

2.0

2.5

3.0

             14.  Preparation for and attendance at examination for discovery or similar procedure for the purpose of production or inspection of documents

0.5

0.75

1.0

1.25

1.5

             15.  Preparation for and attendance at examination for discovery, or similar procedure, per half day

2.0

3.0

4.0

5.0

6.0

D.  Pre-Trial and Pre-Hearing Procedures

 

 

 

 

 

             16.  Preparation of brief for pre-trial conference, settlement conference, mini-trial, Court ordered mediation, case management meeting or similar conference

2.0

3.0

4.0

5.0

6.0

             17.  Preparation for and attendance at pre-trial conference, settlement conference, mini-trial, Court ordered mediation, case management meeting, summary judgment hearing under Rule 56A, judicial case conference under Rule 56A or similar conference, per half day

2.0

3.0

4.0

5.0

6.0

             18.  Attendance at case management meeting under Rule 56A or trial readiness inquiry under Rule 56A

0.25

0.35

0.5

1.0

1.5

E.  Trial or Appeal Hearing in the Trial Division or Hearing under Rule 56A

 

 

 

             19.  Preparation of trial brief and when directed by the Court, written argument

2.0

3.0

4.0

5.0

6.0

             20.  Counsel fee

 

 

 

 

 

                     (a)  first counsel, first day

7.5

15.0

25.0

35.0

45.0

                     (b)  first counsel, second and subsequent days

3.75

7.5

12.5

17.5

22.5

                     (c)  additional counsel, where the Court approves, first day

5.0

10.0

17.0

23.0

30.0

                     (d)  additional counsel, where the Court approves, second and subsequent days

2.5

5.0

8.5

11.5

15.0

F.  Appeals to the Court of Appeal

 

 

 

 

 

             21.  Preparation and filing of notice of appeal or cross appeal

1.0

1.5

2.0

2.5

3.0

             22.  Applications in the Court of Appeal

 

 

 

 

 

                     (a)  Preparation and filing application

1.0

1.5

2.0

2.5

3.0

                     (b)  Preparation and filing of affidavit

1.0

1.5

2.0

2.5

3.0

                     (c)  Preparation of memorandum of fact and law for application

2.0

3.0

4.0

5.0

6.0

                     (d)  Counsel fee on uncontested application

1.0

1.5

2.0

2.5

3.0

                     (e)  Counsel fee on contested application, per half day

2.5

5.0

8.5

11.5

15.0

             23.  Preparation and filing of appeal book

1.0

1.5

2.0

2.5

3.0

             24.  Preparation of factum for appeal hearing

2.0

3.0

4.0

5.0

6.0

             25.  Preparation for and attendance at prehearing conference or similar conference, per half day

1.5

2.25

3.0

3.75

4.5

             26.  Counsel fee on hearing of appeal:

 

 

 

 

 

                     (a)  first counsel, first day             

7.5

15.0

25.0

35.0

45.0

                     (b)  first counsel, second and subsequent days

3.75

7.5

12.5

17.5

22.5

                     (c)  additional counsel, where the Court approves, first day

5.0

10.0

17.0

23.0

30.0

                     (d)  additional counsel, where the Court approves, second and subsequent days

2.5

5.0

8.5

11.5

15.0

G.  Miscellaneous

 

 

 

 

 

             27.  Where the Court approves, counsel fee for travel by counsel exceeding 40 kilometres one way from the counsel’s ordinary place of business for return travel to attend any appeal, trial, hearing, application, examination, conference or similar proceeding

1.0

1.5

2.0

2.5

3.0

             28.  Preparation of order

0.5

0.75

1.0

1.25

1.5

             29.  Preparation of bill of costs

0.5

0.75

1.0

1.25

1.5

             30.  Attendance on taxation, per half day

0.5

0.75

1.0

1.25

1.5

 

III.  Witnesses

        1. In order to compel the attendance of a witness by subpoena, notice of examination or similar process there shall be paid to each witness, in advance of the attendance of that witness, the following:

             (a)  a fee of $100.00 if the witness is to testify as an expert witness or to testify in relation to matters pertaining to his or her profession, trade or calling and $50.00 in every other case;

             (b)  the estimated reasonable travel expenses, including meals and lodging, where the necessity of same may be reasonably anticipated; and

             (c)  the estimated fee to testify, including costs of preparing to testify, upon request by the witness, if the witness is to testify as an expert witness or to testify in relation to matters pertaining to his or her profession, trade or calling, subject to direction by the Court.

        2. In addition to the sum payable to a witness under paragraph (1)(a) above, should a witness be required to attend beyond one day, there shall be paid to each witness for each additional day or part day of required attendance a fee of $100.00 per day if the witness testifies as an expert witness or in matters pertaining to his or her profession, trade or calling and $50.00 in every other case.

        3. In addition to the sum payable to a witness in paragraph (1)(b) above, a witness shall also be paid the difference between the sum paid under paragraph (1)(b) and the actual reasonable travel expenses, including meals and lodging, to attend the proceeding. 

        4. In addition to the sum payable to a witness in paragraph (1)(c) above, a witness shall be paid the difference between the sum paid under paragraph (1)(c) and the actual fee to testify, including costs of preparing to testify, subject to direction by the Court.

        5. Paragraphs 1(a), 1(c), 2 and 4 do not apply to a party who testifies on his or her own behalf.

        6. Paragraphs 1(c), 2 and 4 do not apply to a person who testifies on behalf of a party at a time when that person is employed by that party on matters relating to such employment. 

        7. Where the provisions of this Rule conflict with the Interprovincial Subpoena Act, the latter shall prevail.

IV.  Examiners

        1. Fee chargeable for attending on examination for discovery or other examination, per hour: 0.75 units

V.  Masters and Taxing Officers

        1. Fee chargeable by Masters in examination, taxation or other work, per hour: 2.5 units

        2. Fee chargeable by Taxing Officers (other than Masters) for taxing a bill of costs: 0.15 units

VI.  Commissioners

        1. Fee chargeable on taking a recognizance or bond, whether one or more recognizor or obligor, and whether entered into by all at one time or not: 0.5 units

        2. Fee chargeable for every oath, affidavit, declaration, affirmation or attestation: 0.5 units

        3. Fee chargeable for every acknowledgment and certificate of same: 0.5 units

        4. Fee chargeable for issuing a Statement of Claim: 0.5 units

        5. In the case of Commissioners outside Newfoundland and Labrador, the taxing officer shall allow such fees as the taxing officer may consider reasonable.

VII.  Court Fees

        1. Actual fees

VIII.  Other

        1. Disbursements, including:

             (a)  cost of service of documents;

             (b)  cost of expert reports;

             (c)  fees charged by mediators, and third party expenses incurred, for Court ordered mediation;

             (d)  fees and expenses charged by interpreters;

             (e)  copies at $0.25 per printed page;

              (f)  cost of transcription services and copies of transcript;

             (g)  costs of electronic conferencing, including teleconference and video conference;

             (h)  cost of electronic filing and electronic discovery;

              (i)  reasonable travel expenses of counsel, including meals and lodging, where counsel fee is allowed under Part II, item 27; and

              (j)  other reasonable disbursements.

        2. Law Society Levy

        3. HST as applicable

45/11 s3