Overcharging experts beware – no longer will the courts simply rubber stamp disbursements claimable against a losing party.
While the courts have historically been relatively assertive in assessing legal fees, and in making sure that the time spent and the fees charged by counsel were reasonable; they have historically been relatively passive in their approach to assessable disbursements. Presumably the courts avoided challenging disbursements since the disbursements claimed were reimbursement for the amounts actually spent in good faith, and the courts were reluctant to second guess the benefiter of a successful lawyer’s expenses.
In Hamfler v. 1682787 Ontario Inc., 2011 ONSC 3331 (S.C.J.), a May 31, 2011 decision that has recently gained popularity with defence counsel, Justice Mark Edwards of the Ontario Superior Court of Justice, took issue with the magnitude of disbursements incurred by plaintiff’s counsel in a personal injury claim where a jury awarded the plaintiff just under $200,000 for damages and where the disbursements claimed were approximately $100,000.
While stating that the fundamental question for the court is whether the amount claimed in disbursements is fair and reasonable, Justice Edwards outlined some questions that the court may consider in assessing disbursements, namely:
- Did the evidence of the expert make a contribution to the case, and was it relevant to the issues?
- Was the evidence of marginal value or was it crucial to the ultimate outcome at trial?
- Was the cost of the expert or experts disproportionate to the economic value of the issue at risk?
- Was the evidence of the expert duplicated by other experts called by the same party? Was the report of the expert overkill or did it provide the court with the necessary tools to properly conduct its assessment of a material issue?