[COUNSEL ADDRESSED]
24 In respect to the costs of the amended notice of motion filed by the first defendant on 8 April 2009 and in which the first defendant has been totally unsuccessful, the plaintiffs seek an order that the first defendant pay the costs of the plaintiffs of that notice of motion and that such costs be paid, not on the usual party and party basis, but on the indemnity basis, and, further, the plaintiffs seek an order that those costs be payable forthwith.
25 It has been submitted on behalf of the plaintiffs that the present application by the first defendant was entirely misconceived and that it had no prospects whatsoever of success. In that regard it will be appreciated from the reasons which I have already given regarding the orders and relief sought by the first defendant in the amended notice of motion that I considered that there was no basis for the reliance by the first defendant upon the provisions of rule 36.17 (often referred to as the slip rule). To the extent that the application of the first defendant was grounded upon that rule, I am in agreement with the submission of the plaintiffs that the application was misconceived.
26 It should also be observed that by abandonment of the order for substantive relief, being order 5 in the amended notice of motion (that is, that the amended statement of claim filed on 18 much 2009 be struck out), the only practical effect of the relief sought by the first defendant in the amended notice of motion was, not that there be different orders made from those made by me on 13 March 2009, but that other or different reasons be given for the making of those orders.
27 It seems to me that once the relief sought in order 5 was abandoned the application can also accurately be described as misconceived. Further, I am in agreement with the submission of the plaintiffs that the application had no prospects of success. It could not properly be made within the ambit of rule 36.16, which was the other express basis for the application. Indeed, Senior Counsel for the first defendant in the course of submissions did not attempt to bring it within the ambit of any of the specific provisions of that rule.
28 In the reasons for judgment which I have delivered this morning I have attempted to show that it could not, in any event, be brought within the provisions of the rule. Further, even if contrary to those conclusions any of the provisions of rule 36.16 were to be regarded as having application to the relief sought by the first defendant in the amended notice of motion, I considered that the Court would not be persuaded to grant that relief.
29 I recognise, as has been submitted on behalf of the first defendant, that indemnity costs are not punitive. Nevertheless, I consider that this is a case where the application was misconceived and, in any event, had no prospects of success. In the circumstances of the application by the first defendant for the setting aside of the orders made on 13 March for the re-opening, in effect, of the hearing which had occupied three days and resulted in the orders of 13 March 2009, but seeking, in effect, not that the ultimate outcome be any different but that different reasons be given and relied upon for that outcome, I consider that this is an appropriate case where the costs of the first defendant's application to be awarded to the plaintiff should be awarded upon the indemnity basis.
30 The plaintiffs also seek an order that they be entitled to proceed forthwith to have been those costs paid. Such an order is made only where the costs relate to an entirely discrete area of the litigation. As I have already observed, any party who is dissatisfied with my orders of 13 March 2009 or with the reasons for the making of those orders set forth in my reserved judgement published on that date have a course of redress open to them, by way of appeal. I consider that the present application of the first defendant seeking to re-agitate before myself matters which were the subject of argument over a period of three days is an entirely separate and discrete area of this litigation which can, so far as the costs are concerned, be treated quite independently from the other costs of the litigation.
31 I consider it is appropriate, therefore, in these circumstances that I should make an order that the plaintiffs have leave to proceed forthwith to assessment of the costs which the defendant is to be ordered to pay in respect to the amended notice of motion and that those costs be payable forthwith upon such assessment.
32 I make the following orders:
1. I order that the amended notice of motion filed by the first defendant on 8 April 2009 be dismissed.
2. I make no orders in respect to the notices of motion filed by the plaintiffs on respectively 6 April 2009 and 15 April 2009.
3. I order that the first defendant pay the costs of the plaintiffs of the amended notice of motion filed on 8 April 2009, such costs to be on the indemnity basis.
4. I order that the plaintiffs have leave to proceed forthwith to assessment of the foregoing costs and that upon such assessment those costs be payable forthwith to the plaintiffs.
5. I make no orders in respect to the costs of the aforesaid notices of motion filed by the plaintiffs on respectively 6 April 2009 and 15 April 2009.