Is a notice to an expert of a claim for special costs against them an abuse of the court’s process?
British Columbia, Canada
The following excerpt is from Walker v. John Doe, 2014 BCSC 830 (CanLII):
In the circumstances of this case the notice to the expert of a claim for special costs against them is also an abuse of the court’s process. Assuming, for the sake of argument, that it might be possible to provide particulars that could support a claim for special costs in a notice under R. 11-6(10), the plaintiff did not attempt to do so. No particulars that could support a claim for special costs against a non-party were provided. In argument plaintiff’s counsel did not attempt to refer to the expert reports to establish a basis for any such claim. As there is no need to remind the experts of their duty to the court, the only reason I can discern for the plaintiff’s statement that he “shall” seek costs and other sanctions against the experts personally would be to intimidate the experts, or discourage them from giving evidence. Such actions are a misuse of the court’s procedure and must be recognized as an abuse of the court’s process: Behn v. Moulton Contracting Ltd., 2013 SCC 26 at paras. 39-41.
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