ROLLS-ROYCE plc, ROLLS-ROYCE & BENTLEY MOTOR CARS LIMITED, v. BENTLEY MOTORS LIMITED, 2003 FCT 348

Date: 20030326 Docket: T-2221-98 Neutral citation: 2003 FCT 348 Ottawa, Ontario, this 26th day of March, 2003 PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE BETWEEN: ROLLS-ROYCE plc, ROLLS-ROYCE & BENTLEY MOTOR CARS LIMITED, and BENTLEY MOTORS LIMITED Plaintiffs - and - IAN D. FITZWILLIAM, ROLLS-ROYCE LIMITED, ROLLS-ROYCE MOTOR CARS LIMITED and BENTLEY MOTORS LIMITED Defendants REASONS FOR ORDER AND ORDER REGARDING COSTS O'KEEFE J. [ 1 ] This is a motion by the plaintiffs for: 1.

An order reconsidering "costs of this action plus GST" awarded to the plaintiffs in the reasons for order and order issued in this proceeding on May 24, 2002, to include all costs of the plaintiffs' motions for interlocutory injunctions and

summary judgment; 2. An order directing the assessment officer to award costs to the plaintiffs on an increased scale; 3. Costs of this motion; and 4. Such further and other relief as may be requested and this Honourable Court may grant. [ 2 ] In my reasons for order in this application for

summary judgment, I ordered that "The plaintiffs shall have their costs of this action plus GST." The plaintiffs in their draft order for

summary judgment, at paragraph 12, requested that "The plaintiffs shall have their costs of this action on a solicitor-client basis plus GST." Besides not granting costs on a solicitor-client basis, I granted the costs requested by the draft order. For that reason, I am not prepared to reconsider my original order in this respect.

In any event, although not necessary for this motion, it would appear that costs of this action would include the type of costs sought by the plaintiffs. [ 3 ] Order directing the assessment officer to award costs to the plaintiffs on a increased scale I have compared the offers to settle made by the plaintiffs to the defendants and I am of the opinion that the judgment obtained by the plaintiffs is more favourable than the offers to settle made by the plaintiffs dated April 19, 2001 and May 25, 2001.

The judgment obtained by the plaintiffs included an award of damages or at their option, an accounting for profits, plus pre-judgment and post- judgment interest, and costs. Accordingly, the plaintiffs shall have the cost benefits provided in Rule 420.(1) of the Federal Court Rules, 1998 , S.O.R./98-106 . The double costs will commence on the date of service of the April 19, 2001 offer. [ 4 ] The plaintiffs have requested costs for a second counsel at the hearing for

summary judgment. I am prepared to grant this request based on the volume of material that was filed in this matter. [ 5 ] The plaintiffs have also requested that I award them costs based on the higher end of Column V of Tariff B. I have considered the submissions of counsel for the plaintiffs and I am not persuaded to award costs based on the higher end of Column V of Tariff B. However, the jurisprudence of this Court does allow for the costs to be assessed in a higher column of Tariff B.

I have considered the plaintiffs' submissions on this matter and I am prepared to order that the plaintiffs' costs be assessed at the top end of Column IV of Tariff B, because of the amount of preparation that was required on behalf of the plaintiffs. [ 6 ] There shall be no order as to costs of this motion as success was divided. ORDER [ 7 ] IT IS ORDERED that:

1. The portion of the plaintiffs' motion requesting that I reconsider my order awarding "costs of this action plus GST" is dismissed. 2. The plaintiffs shall have the cost benefits provided in Rule 420(1) of the Federal Court Rules, 1998, supra , commencing on the date of service of the April 19, 2001 offer to settle. 3. The plaintiffs' costs shall be assessed at the top end of Column IV of Tariff B. 4. There shall be no order as to costs of this motion. "John A. O'Keefe" J.F.C.C.

Ottawa, Ontario March 26, 2003 FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-2221-98 STYLE OF CAUSE: ROLLS-ROYCE plc, ROLLS-ROYCE & BENTLEY MOTOR CARDS LIMITED, and BENTLEY MOTORS LIMITED - and - IAN D. FITZWILLIAM, ROLLS-ROYCE LIMITED, ROLLS-ROYCE MOTOR CARS LIMITED and BENTLEY MOTORS LIMITED PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: Tuesday, November 19, 2002 REASONS FOR ORDER AND ORDER REGARDING COSTS OF O'KEEFE J. DATED: Wednesday, March 26, 2003 APPEARANCES : Mr. Mark Biernacki FOR PLAINTIFFS Mr.

Ian Fitzwilliam FOR DEFENDANTS SOLICITORS OF RECORD : Smart and Biggar Suite 1500, Box 111 438 University Avenue Toronto, Ontario M5G 2K8 FOR PLAINTIFFS

Mr. Ian Fitzwilliam In His Own Right World Bar Association Suite 1811, Minto Plaza 38 Elm Street Toronto, Ontario M5G 2K5 FOR DEFENDANTS