In Boal v. International Capital Management Inc.,the representative plaintiff had brought a proposed class action on behalf of 170 investors holding unsecured promissory notes.
During the course of litigation, the representative plaintiff had obtained a Norwich Order, a Mareva injunction, and a certificate of pending litigation over a property.
One year later, three of the co-defendants moved for an order discharging the certificate of pending litigation, made a claim for damages, and claimed cost's nearing $75,000.
The discharge was granted but the issue of damages, if any, from the registration of the certificate of pending litigation was deferred to trial. Further, costs were not initially considered. Instead, Justice Perell left it up to the parties to settle. When the parties failed to do so, written submissions were made.
The co-defendants made the argument that costs ought to be payable forthwith given that 1) they were the successful party on the motion, 2) they had made attempts to settle and minimize costs, and perhaps most importantly, 3) so as not to unfairly advantage the plaintiff over the defendants.
The plaintiffs argued that costs should be in the cause due to the public interest component of their action.
Acknowledging the fault of both parties in the delay of litigation and anticipating contentious claims from the parties to follow in arguing the merits of the case, Justice Perell decided to order costs in the cause.