Caterpillar Inc v John Deere Ltd

RULING ON COSTS 1 I have read the applicant's submissions filed 7 May 1999 and the respondents' submissions filed 14 May. 2 I propose to order that the respondent's costs of the applicant's motion to join Deere & Co. and serve it out of the jurisdiction should be taxed and paid forthwith pursuant to O 62 r 3(2) and (3). My reasons are as follows. 3 While I accept that the motion was arguable and was not frivolous or vexatious, it nevertheless failed because, on the evidence presented, a prima facie case was not made out. There is therefore not the degree of unpredictability that there often is when a purely discretionary interlocutory order is sought. 4 There were substantial affidavits and a hearing over two full days with Senior and Junoir Cuonsel retained. I infer that significant costs have been incurred. The successful party should not be out of pocket in respect of a large sum for a period which, if the progress of this case so far is any guide, will be quite lengthy. Moreover, costs would not, as far as I am aware, carry interest until they were taxed. 5 The issues on the applicant's motion were discrete. They are not going to be replicated in any subsequent hearing in this proceeding. Nor is the resolution of the motion likely to assist in the determination of any substantive issues - as might, for example, be the case where an interlocutory order results in the amendment of pleadings or the provision of particulars. 6 The applicant's argument that an order for immediate taxation will "divert the attention and resources of both parties to negotiations with respect to the issue of costs or preparation for a taxation hearing" must carry little weight having regard to the diversion already created by the applicant's unsuccessful motion. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.