A relatively recent decision from the BC Court of Appeal will
shield defendants from potential exposure to special costs orders,
even if they end up losing the litigation. The decision
creates an uneven playing field, where in certain types of
litigation, successful defendants will recover special costs but
successful plaintiffs will not. Plaintiffs' counsel will
need to be mindful of this decision in pleading, preparing and
arguing their case so as to position their clients for a higher
level of indemnification following success at trial.
A few years ago, Peter Roberts wrote an excellent summary titled
The Thorny issue of Costs and Special Costs,
that contrasted the two types of costs the courts will order:
"party and party costs" and "special
costs". As a rule of thumb, party and party costs are
only about 25% of your actual legal fees, whereas special costs
provide a much higher recovery of closer to 80-100% of your actual
legal fees (assuming they are
