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Cost submissions - Citing without prejudice communication

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  • Cost submissions - Citing without prejudice communication

    When making a cost submission after judgement
    Is it permissible to refer to and include without prejudice
    letters between self rep (me) nd opposing counsel?
    Relevant as there are many letters refusing to
    discuss, correspond , confer or exchange offers.
    My 8 offers were never responded to and
    answered both my claims and theirs.
    Four were in pre-trial submissions
    They made only one offer other than pretrial submissions
    Only dealt with their claims and other issues they
    added or subtracted arbitrarily
    Many letters from me requesting to discuss, negotiate,
    exchange offers or mediate.
    All refused or ignored
    Letters from them from the start 3 years ago
    saying I give in, drop my counter claims and pay their costs or
    trial was only option.
    Aggressive and nasty.
    But all without prejudice
    Ruling is imminent and I am cautiously optimistic.
    I have my self rep costs tabulated.
    I am hoping my submission can include all letters f
    showing my good faith and their refusals.
    I am hoping my last offer is in the end better than the
    order but you can never know.

  • #2
    Yes. One the issue you offered to settle has been adjudicated, you can refer to your without prejudice offers in cost submissions.

    Comment


    • #3
      Originally posted by Kinso View Post
      Yes. One the issue you offered to settle has been adjudicated, you can refer to your without prejudice offers in cost submissions.
      Thank you. I understand the offers are permitted, actually required and have started on a summary table to make it clear the progression, backsliding and added claims without any amended claims.

      I am hoping to include the litany or obstinate, rude, obstructing and senseless emails and letters form counsel basically saying we will NOT respond to offers and we are ONLy interested in a trial. Given the very excellent presiding judge I believe this is probative when assessing costs. I am cautiously optimistic that my pleadings were more persuasive so anticipate I will be first to submit (jinx off).

      Any experience or examples?

      Plus I am submitting my costs as self represented. I am a professional and completed all work before trial, during 5 pre-trial conferences and a 5 day trial alone.

      And there will be a crazy post coming about some shocking shenanigans from opposing counsel. Hypothetically of course. Crazy town.

      Comment


      • #4
        Any communication marked 'without prejudice' is permitted, subject to the Judge's limits. Often they impose a three page limit excluding attachments,.

        Include all the letters as attachments, but in your 'cost submissions' you'll say something to the effect of:

        The Applicant/Respondent failed to respond in a settlement oriented manner. I received X number of letters confirming they had no interest in good faith settlement discussions. For example, counsel for my ex said [insert compelling quote]. At Tab X I have attached [x] pieces of correspondence to support my point, including letters dated X X and X.

        Comment


        • #5
          Originally posted by Kinso View Post
          Any communication marked 'without prejudice' is permitted, subject to the Judge's limits. Often they impose a three page limit excluding attachments,.

          Include all the letters as attachments, but in your 'cost submissions' you'll say something to the effect of:

          The Applicant/Respondent failed to respond in a settlement oriented manner. I received X number of letters confirming they had no interest in good faith settlement discussions. For example, counsel for my ex said [insert compelling quote]. At Tab X I have attached [x] pieces of correspondence to support my point, including letters dated X X and X.
          Brilliant! Thank you very much! your advice is always helpful and seems poignant.

          Comment


          • #6
            Originally posted by Kinso View Post
            Any communication marked 'without prejudice' is permitted, subject to the Judge's limits. Often they impose a three page limit excluding attachments,.

            Include all the letters as attachments, but in your 'cost submissions' you'll say something to the effect of:

            The Applicant/Respondent failed to respond in a settlement oriented manner. I received X number of letters confirming they had no interest in good faith settlement discussions. For example, counsel for my ex said [insert compelling quote]. At Tab X I have attached [x] pieces of correspondence to support my point, including letters dated X X and X.
            What about offers made as part of conference briefs? Fair game? This would be essential to prove the ping ponging on the central claim. My theory was that a claim for custody was made to intimidate and was without merit. No offer outside of the briefs was received that would evidence this tactic. That was plain dirty bringing kids into what was otherwise all financial and minor access refinements. I was threatened in the first series of letters if I did not acquiesce a claim for sole custody (totally without merit) was imminent. Joint custody has been in place per an agreement for a long time and never challenged. They offered joint (status quo) in a conference brief once.

            Comment


            • #7
              Anyone? Buehler?

              Comment


              • #8
                Yes you can cite them.

                Remember the Judge will be primarily concerned with your offers and if they met or exceeded the trial judges’ decision. Make sure you read Rule 18 and Rule 24 closely and tailor your arguments to this.

                Also review Serra v. Serra, (2009) ONCA 395 and any other costs orders on CanLii in family court. Fit your analysis to the judges’ analysis in those cases.

                Comment


                • #9
                  Originally posted by Kinso View Post
                  Yes you can cite them.

                  Remember the Judge will be primarily concerned with your offers and if they met or exceeded the trial judges’ decision. Make sure you read Rule 18 and Rule 24 closely and tailor your arguments to this.

                  Also review Serra v. Serra, (2009) ONCA 395 and any other costs orders on CanLii in family court. Fit your analysis to the judges’ analysis in those cases.
                  Thank you so much. Very helpful information!

                  Comment


                  • #10
                    Originally posted by Kinso View Post
                    Yes you can cite them.

                    Remember the Judge will be primarily concerned with your offers and if they met or exceeded the trial judges’ decision. Make sure you read Rule 18 and Rule 24 closely and tailor your arguments to this.

                    Also review Serra v. Serra, (2009) ONCA 395 and any other costs orders on CanLii in family court. Fit your analysis to the judges’ analysis in those cases.
                    @KINSO

                    What do you think about a table that compares the offers of both parties chronologically ordered by the claims/counter claims and "other" issues that were included in the back and forth? is that presumptive on my part? I personally would find that useful.

                    As it of note that not one counter offer was received in response to any of my offers?

                    Or that their single offer did not address any of my unique counter claims?
                    Last edited by Abba435; 03-09-2020, 10:35 AM.

                    Comment


                    • #11
                      Originally posted by Abba435 View Post
                      Thank you so much. Very helpful information!
                      @KINSO
                      I have sourced the court cost grid. Seems helpful.

                      Any idea what a reasonable cost claim or award would be if a party filed a motion after pleadings were closed and then withdrew the motion after an appearance where there was no resolution?

                      Comment


                      • #12
                        From what I understand costs are considered on a case by case basis, the feelings of the judge and the reasonableness of the parties.

                        To use an example...the two cases before my husbands one motion were handled by lawyers who argued $5,000 to 20,000 in costs. Hubby’s lawyer thought they would get some costs and none were ordered. For his motion, it took the whole day and was unnecessary. He ordered costs against the ex who was self repped because she wasted the courts time and failed in her motion. He gave a bit of a speech about costs and how reasonable they both were in court and how they were able to work through the matter but the lack of success and waste of time weighed heavily on his decision.

                        Bottom line, it all depends on your case. Just because the other side loses doesn’t mean you will get costs. You may want to look up your judge and see if there are any decisions on costs and how they decided.

                        Comment


                        • #13
                          Originally posted by rockscan View Post
                          From what I understand costs are considered on a case by case basis, the feelings of the judge and the reasonableness of the parties.

                          To use an example...the two cases before my husbands one motion were handled by lawyers who argued $5,000 to 20,000 in costs. Hubby’s lawyer thought they would get some costs and none were ordered. For his motion, it took the whole day and was unnecessary. He ordered costs against the ex who was self repped because she wasted the courts time and failed in her motion. He gave a bit of a speech about costs and how reasonable they both were in court and how they were able to work through the matter but the lack of success and waste of time weighed heavily on his decision.

                          Bottom line, it all depends on your case. Just because the other side loses doesn’t mean you will get costs. You may want to look up your judge and see if there are any decisions on costs and how they decided.
                          @rockscan

                          As usual very helpful and relevant :-)

                          Costs are clearly highly subjective and no formula exists (that makes any sense or is public)

                          I am no Luddite but searching by Judge on Canlii has eluded me. Any tips?

                          Comment


                          • #14
                            You may want to see if you can use a legal database at a school? Maybe a library? Canlii doesn’t have all the cases and your judge may have never heard a cost argument. There may be something in a legal database though that us peons have zero access to.

                            Comment


                            • #15
                              Originally posted by rockscan View Post
                              You may want to see if you can use a legal database at a school? Maybe a library? Canlii doesn’t have all the cases and your judge may have never heard a cost argument. There may be something in a legal database though that us peons have zero access to.
                              Again, really helpful.

                              I may have to visit the local law school, just how I want to spend my time :-(

                              Who are you calling a peon anyway????

                              Comment

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