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Estate litigation can be a complex and expensive process. Understanding the legal costs involved is crucial for both executors and beneficiaries facing litigation or those considering raising a claim. In this article, we’ll take a look at how B.C. Courts usually determine who is responsible for legal fees.
When a Court assigns ‘costs’ to one party, they are ordering them to pay for the other party’s legal expenses. These can represent the expenses of legal advice and representation and court fees related to the case. Ordering costs provides compensation for the winning party for the time spent on the issue, encourages settlement and can discourage frivolous lawsuits.
There are two types of litigation costs which a Court can assign in British Columbia. The first is known as ‘part and party costs’. These are calculated based on a set of rules set out by the B.C. Supreme Court. These rules consider the complexity and social importance of the case, and the amount of time spent in trial. These fees place the winning party in the financial position they would have been in if they hadn’t had to litigate.
Another type of litigation costs the Court can award are called ‘special costs’. These are only awarded in unusual circumstances. Special costs are aimed at compensating a winning party where the other party has behaved inappropriately. For example, if the losing party engaged in fraud or harassment in the course of their litigation. These fees are usually above and beyond the actual legal fees incurred by the winning party. Litigants can apply to the Court to be awarded special costs if they feel the other party has behaved truly reprehensibly.
Generally, in all types of litigation, the Court will assign the costs of legal fees for both parties to the “losing party”. In some instances, there is no definite winner or loser of a case, but blame for the issue is apportioned between the parties. Above all, the rule for assigning costs is that they are “in the cause” of the litigation. This means that the party who ’caused’ the legal fees, whether by bringing a frivolous lawsuit or by their actions which gave rise to the litigation will be responsible.
Given that litigation expenses are usually assigned to the losing party, expenses are assessed at the end of a case. If a case goes to trial, a Judge will usually make an order for costs in their final decision. If a case has reached a settlement before trial, a settlement agreement will usually provide details on how and when litigation expenses will be assessed. Once you have received an order, you can arrange to speak with the registrar. The timeline for receiving payment for legal expenses varies from case to case.
If you have questions or concerns about a potential estate litigation case, contact an experienced estate lawyer today.