COSTS — claim and cross-claim — mixed success — plaintiff succeeded on significant factual issue and obtained declaratory relief — plaintiff unsuccessful on contractual termination, possession and damages claims — first defendant established breach on cross-claim but failed to prove loss — broad brush apportionment appropriate — whether indemnity costs appropriate for false denial of allegations or unreasonable rejection of offer — late submitting appearance did not insulate second defendant from costs — costs of abandoned relief excluded — reopening applications
Quick Take
1Where litigation produces genuinely mixed success — one party succeeding on a significant factual issue and obtaining declaratory relief but failing on contractual, possessory and monetary claims — a broad brush order that each party bear its own costs of the claim may be appropriate, rather than attempting issue-by-issue dissection.
2A submitting appearance filed late in proceedings does not insulate a party from an adverse costs order where that party actively defended the proceedings for a substantial period, put the successful party to the cost of proving its case, and could instead have consented to the relief ultimately granted; indemnity costs may be warranted where the case against the submitting party was overwhelming.
3An adverse finding on credit and rejection of a party's evidence on an important issue does not, without more, establish the deliberate maintenance of a case known to be false so as to justify indemnity costs under the Colgate Palmolive principles.
