Saturday, October 20, 2012

What Are Normal Costs in Hard Fought Litigation?

Fournier Pharma Inc v Sandoz Canada Inc / fenofibrate (Costs) 2012 FC 1121 Zinn J

A point of general interest in Zinn J’s costs decision from the fenofibrate litigation (blogged here and here) is his remark at [6] (emphasis added) that

Typically costs are assessed at the mid-point of Column III of the Tariff; however, numerous judgments of this Court have assessed costs in pharmaceutical litigation at higher levels. Given the complexity of this litigation, I find that the costs are to be assessed at the higher end of Column III.

Contrast this will Martineau J’s statement in his costs decision in Eurocopter v Bell at [22] that “an assessment of costs in accordance with the higher unit of column IV seem to be commonly maintained in [] lengthy and hard-fought patent litigations” (emphasis added). Eurocopter was an infringement action while the fenofibrate case was an NOC proceeding, but this does not seem to be a distinguishing factor, as Zinn J referred simply to “pharmaceutical litigation.”

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