Saturday, August 19, 2017
Blogging Break
I'll be taking a break from blogging for a couple of weeks. I'll resume after Labour Day, starting with any decisions that might have been released in the meantime.
Monday, August 14, 2017
Is the Tariff System for Costs Broken?
Dow Chemical Co v Nova Chemicals Corp 2017 FC 759 Fothergill J
2,160,705 / film-grade polymers / ELITE SURPASS
In this costs decision related to the remedies phase of this litigation, Fothergill J awarded Dow, the successful plaintiff, legal fees in the amount of $1,200,000.00. This was about 15% of Dow’s claimed costs, though Fothergill J found that the legal fees claimed by Dow were not adequately supported by evidence, and did not on their face appear reasonable [20]. Of more interest than the size of the award is that Fothergill J used his discretion to assess the award at three times the maximum specified under the Tariff (approximately $400,000.00) [22]. As discussed here, O’Keefe J also departed from the Tariff in awarding costs in the liability phase, 2016 FC 91 saying the Tariff award would be “totally inadequate” [26]. This suggests that the Tariff system is so outdated as to be effectively broken, at least for major patent litigation. The Federal Court has long since recognized this, with a Sub-Committee having been struck almost three years ago, in November of 2014, and a discussion paper issued in October of 2015. Perhaps I’ve missed it, but I haven’t seen anything more from that Sub-Committee since then.
2,160,705 / film-grade polymers / ELITE SURPASS
In this costs decision related to the remedies phase of this litigation, Fothergill J awarded Dow, the successful plaintiff, legal fees in the amount of $1,200,000.00. This was about 15% of Dow’s claimed costs, though Fothergill J found that the legal fees claimed by Dow were not adequately supported by evidence, and did not on their face appear reasonable [20]. Of more interest than the size of the award is that Fothergill J used his discretion to assess the award at three times the maximum specified under the Tariff (approximately $400,000.00) [22]. As discussed here, O’Keefe J also departed from the Tariff in awarding costs in the liability phase, 2016 FC 91 saying the Tariff award would be “totally inadequate” [26]. This suggests that the Tariff system is so outdated as to be effectively broken, at least for major patent litigation. The Federal Court has long since recognized this, with a Sub-Committee having been struck almost three years ago, in November of 2014, and a discussion paper issued in October of 2015. Perhaps I’ve missed it, but I haven’t seen anything more from that Sub-Committee since then.
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