THE NEW COSTS OUTLINE By Andrew C Murray Lerners

THE NEW COSTS OUTLINE By: Andrew C. Murray Lerners LLP Barristers & Solicitors P.O. Box 2335 London ON N6A 4G4 Phone: 519.640.6313 TABLE OF CONTENTS OVERVIEW & BACKGROUND...................................................................................................1 GUIDELINES FROM THE ONTARIO COURT OF APPEAL .......................................................4 RULE 57 AND THE NEW COSTS OUTLINE..............................................................................5 OTHER IMPORTANT COST AMENDMENTS ............................................................................7 Substantial Indemnity Costs...................................................................................................7 Hourly Rates..........................................................................................................................8 Full Indemnity Costs ..............................................................................................................8 PROCESS FOR FIXING COSTS................................................................................................9 PRACTICE POINTS .................................................................................................................10 QUESTIONS FOR THE FUTURE.............................................................................................13 CONCLUSION..........................................................................................................................14 COSTS GRID ............................................................................................................................ A COSTS OUTLINE...................................................................................................................... B STATEMENT ON HOURLY RATES .......................................................................................... C THE NEW COSTS OUTLINE OVERVIEW & BACKGROUND Effective July 1, 2005, various amendments to the Rules of Civil Procedure, along with a new form (Form 57B) called a “Costs Outline” replaced what was formerly known as the “Costs Grid”.1 In many respects, these changes simply embody the evolution of the case law under the Costs Grid, particularly from the Ontario Court of Appeal; however, a few changes are more dramatic. During the three and a half year run of the Costs Grid, many Judges expressed concern that the Costs Grid created an unwarranted emphasis on the simple multiplication of hourly rates by the number of hours put into the file. During the argument on costs, Judges were often asked to engage in a line-by-line review of time dockets, which they disliked. Even prior to the Costs Grid, when Judges fixed costs, it was recognized that their function was different from that performed by an Assessment Officer.2 So it was no surprise that three successive decisions from the Ontario Court of Appeal pointed the way towards the new Costs Outline that has ultimately been implemented. In Boucher v. Public Accountants Council (Ontario)3, Zesta Engineering Ltd. v. Cloutier4, and Moon v. Sher5, the Ontario Court of Appeal has consistently indicated that there should not be an exhaustive, detailed analysis 1 The Costs Grid was in place from January 1, 2002 until June 30, 2005. For many years prior to that, there was a tariff system. Part I of Tariff A broke down activity in a lawsuit into certain steps, such as pleadings, discovery, pre-trial, trial preparation, and trial attendance. Before the Costs Grid, the usual manner in which costs were determined was by way of assessment on an attendance before an Assessment Officer. 2 See Apotex Inc. v. Egis Pharmaceuticals (1991), 4 O.R. (3d) 321, in which it was held that the Judge who fixed his costs is not performing an assessment item by item, according to the Tariffs, as would be done by an Assessment Officer; it is rather the Judge’s determination of what the services devoted to the motion or other proceeding are worth, according to the submissions of counsel, his own experience, and with some regard to what would be assessed on the party and party scale. 3 (2004), 71 O.R. (3d) 291 (C.A.) 4 (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.) at para. 4 5 unreported decision on costs released November 16, 2004 (Borins J.A., Lang J.A., Juriansz J.A.) -2- of time dockets in order to fix costs, nor should exorbitant amounts of time spent by counsel be passed along to the losing party. At the same time that hours and hourly rates were deemphasized, the Ontario Court of Appeal held that there ought to be a consideration of what the losing party could expect to have to pay in the circumstances. Under the most current costs regime, the Costs Outline, section 131 of the Courts of Justice Act6 continues to be the springboard from which all costs arguments are to be made. It has not been amended and still provides: Subject to the provision of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. Before the recent amendments took effect, Rule 57 of the Rules of Civil Procedure allowed the Court to consider a number of factors when exercising its discretion under Section 131 of the Courts of Justice Act to award costs. There were eight specific factors, plus a ninth catchall factor that related to “any other matter relevant to the question of costs”. The former text of Rule 57.01(1) is reproduced below: In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, (a) the amount claimed and the amount recovered in the proceeding; (b) (c) (d) the apportionment of liability; the complexity of the proceeding; the importance of the issues; 6 R.S.O. 1990, c.C.43, as amended -3- (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was, (i) (ii) caution; improper, vexatious or unnecessary, or taken through negligence, mistake or excessive (g) a party’s denial of or refusal to admit anything that should have been admitted; (h) whether it is appropriate to award any costs or more than one set of costs where a party, (i) commenced separate proceedings for claims that should have been made in one proceeding, or (ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and (i) any other matter relevant to the question of costs. While Rule 57 continued to exist under the former Costs Grid, these factors often seemed to be given short shrift in favour of a simple analysis of the time spent multiplied by the applicable hourly rates. The new Costs Outline is designed to resuscitate all of these other factors. The Costs Grid abolished the arbitrary compartmentalization of an action that had been required by the former Tariff. Instead, it set out a framework by which partial indemnity fees and substantial indemnity fees were to be calculated. It established a cap on hourly rates that was based on the experience of counsel. For the sake of posterity, the Costs Grid is reproduced in full at Tab A. -4- GUIDELINES FROM THE ONTARIO COURT OF APPEAL Before the Costs Outline was revealed, there was pretty strong language coming out of the Court of Appeal which pointed the direction of future change. In its 2002 decision in Zesta Engineering, the Court said: In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant. In its June 2004 decision in Boucher, the Court said: It is important to bear in mind that Rule 57.01(3), which established the Costs Grid, provides: When the court awards costs, it shall fix them in accordance with subrule (1) and the Tariffs. Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s. 131 of the Courts of Justice Act, R.S.O. 1990, c.C. 43. The express language of Rule 57.01(3) makes it clear that the fixing of costs is not simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs does not begin and end with a calculation of hours times rates. The introduction of a costs grid was not meant to produce that result, but rather to signal that this is one factor in the assessment process, together with the other factors in Rule 57.01. Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant. … In deciding what is fair and reasonable, as suggested above, the expectation of the parties concerning the quantum of a costs award is a relevant factor. I refrain from attempting to articulate a more detailed or formulaic approach. The notions of fairness and reasonableness are embedded in the common law. Judges have been applying these notions for centuries to the factual matrix of particular cases. -5- In its November 2004 decision in Moon v. Sher, the Court said: Not, surprisingly, since its introduction the cost grid has produced a considerable volume of case law, mostly from the Superior Court of Justice, discussing the role of the judge in fixing costs. In addition, judges have expressed concerns about the mechanism, or process, of fixing costs. In an article written before the decision of this court in Boucher v. Public Accountants Council for the Province of Ontario (2004), 48 C.P.C. (5th) 56, Robert D. Malen reached the following conclusion: It is apparent that, with the rule change that shifted the burden of dealing with costs back onto judicial shoulders, the cases have come full circle. The “summary” approach to the fixing of costs epitomized in Apotex, which was modified in Murano on the basis that there must be a “critical examination of the parts” in order to make a proper determination, has come back into judicial favour. As well, there appears to be a judicial reaction to the sometimes staggering amounts that are being claimed for costs, even in uncomplicated matters. Judges are saying, in effect, that they are not prepared to sign a blank cheque, even if the hours are there, and that there must be limits based on the principles of “standardization”, “predictability” or the “reasonable expectations” of the parties. It is apparent that the judiciary is concerned with access to the courts and that litigants with legitimate claims should not be cowed by the possibility that the bringing of a simple motion might have catastrophic financial consequences should they lose. At this point, only time will tell whether these principles take hold, and a pattern whereby hard numbers (or a range) is established for particular kinds of motions or applications etc., which will then provide for the predictability that the legal profession requires to guide its decision-making and advice to clients. RULE 57 AND THE NEW COSTS OUTLINE The former Costs Grid has been replaced by amendments to Rule 57 and a brand new form, Form 57B. Rule 57.01(1), as outlined above, has now been amended to include two new factors which may be considered by the Court. These factors are: -6- (0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed. Rule 57.01 has also been amended to include a new subparagraph (6) which deals with the Costs Outline. It provides: Unless the parties have agreed on the costs that it would be appropriate to award for a step in a proceeding, every party who intends to seek costs for that step shall give to every other party involved in the same step, and bring to the hearing, a costs outline (Form 57B) not exceeding three pages in length. Attached at Tab B is a blank version of the new Costs Outline, Form 57B. The Costs Outline requires counsel to summarize, in no more than three pages, how the factors enumerated in Rule 57.01(1) relate to the request that is being made for the payment of costs. Instead of an undue emphasis being placed on the number of hours spent by counsel, the new Costs Outline only requires a brief description of the fee items, the lawyers, and the other individuals involved, the hours spent, the partial indemnity rate, and the actual rate being charged to the client. The Costs Outline makes specific reference to contingency fee arrangements and asks counsel to indicate what the hourly rate would be that is charged to the client, in the absence of a contingency fee. The first factor has essentially folded in the old Costs Grid to make it but one of many other factors to be considered by the Courts when assessing the costs. There will still be some reference to the years of experience of counsel, the number of hours spent on the file, and -7- the hourly rates, but the amendments have made it clear, if it was not clear before, that this is but one factor of many that cannot be considered in isolation. The second amendment, dealing with the reasonable expectation of the losing party, appears to be a codification of the language that had been coming out of the Ontario Court of Appeal, as detailed above, in which a concern was expressed about the quantum of costs awards and the reasonable expectation of the losing party. OTHER IMPORTANT COST AMENDMENTS Substantial Indemnity Costs Tucked away in Rule 1.03, the “definitions” section of the Rules of Civil Procedure, is this very important change to the definition of “substantial indemnity costs”: “Substantial indemnity costs” mean costs awarded in an amount that is 1.5 times what would otherwise be awarded in accordance with Part I of Tariff A and “on a substantial indemnity basis” has a corresponding meaning. This is a dramatic change which has received very little commentary or attention. It would appear that, in practice, whenever an award of substantial indemnity costs is allowed, the successful party will simply present the request for costs in the form of the new Costs Outline. For that portion of the costs to which substantial indemnity costs apply, the amount of costs that would otherwise be allowed are multiplied by a factor of 1.5. There is a deemphasis on the amount of time that is in the file that would otherwise be paid by a client on the basis of a solicitor and client account. Under the Costs Grid, a request for substantial indemnity costs would include the actual time dockets and the award would approach, although not equal, the actual bill that was going out to the client. With the Costs Outline, substantial indemnity costs are strictly linked to the partial indemnity costs, enhanced by a 1.5 multiplier. -8- Hourly Rates Some guidance has been given to the bar by the Costs Sub-Committee of the Civil Rules Committee with respect to the expected maximum hourly rates to be applied on a partial indemnity scale. Attached at Tab C is a copy of the Statement on Hourly Rates prepared by the Costs Sub-Committee7. The partial indemnity hourly rates are the same as was formerly outlined in the Costs Grid. With the new 1.5 multiplier for substantial indemnity costs, the recommended maximum rates have been increased for lawyers and remain the same for non-lawyers. See the table below: Expected Maximum Substantial Indemnity Hourly Rates Costs Grid Law Clerk Student-at-law Lawyer (less than 10 years) Lawyer (10-20 years) Lawyer (more than 20 years) up to $125.00 per hour up to $90.00 per hour up to $300.00 per hour up to $400.00 per hour up to $450.00 per hour Costs Outline $120.00 per hour $90.00 per hour $337.50 per hour $450.00 per hour $525.00 per hour Full Indemnity Costs The argument that I intend to make on the right set of factual circumstances is that the Rules of Civil Procedure have now created a third category of cost recovery well beyond partial indemnity costs and also beyond substantial indemnity costs (which are now fixed at 1.5 times a partial indemnity award). Rule 57.01(4)(d) provides: Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act, (a) to award or refuse costs in respect of a particular issue or part of a proceeding; 7 If you are not already familiar with the website for the Ontario Courts, I would commend it to you. It may be found at www.ontariocourts.on.ca. If offers a wealth of information, certainly beyond issues pertaining to costs. -9- (b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding; (c) to award all or part of the costs on a substantial indemnity basis; (d) to award costs in an amount that represents full indemnity; (emphasis added) or (e) to award costs to an unrepresented party. Prior to July 1, 2005, the phrase “full indemnity” was not included in the Rules of Civil Procedure. It presumably means something more than “substantial indemnity”. There may well be opportunities to expand cost recovery by relying upon this provision. Full indemnity would appear to require the losing party to pay the successful party’s actual solicitor and client bill8. PROCESS FOR FIXING COSTS A new subparagraph (7) has been added to Rule 57.01. It provides: The court shall devise and adopt the simplest, least expensive and most expeditious process for fixing costs and, without limiting the generality of the foregoing, costs may be fixed after receiving written submissions, without the attendance of the parties. Under the old Tariff system, costs were sometimes fixed by a Judge at the conclusion of a trial.9 8 I am obliged to credit my friend, Bill Dewar, with the genesis of this argument, as he was the first person to draw to my attention the new term “full indemnity”, 9 Apotex Inc. v. Egis Pharmaceuticals, supra; Pittman Estate v. Bain (1994), 35 C.P.C. (3d) 67; Dejong (Litigation Guardian of) v. Owen Sound General & Marine (1996), 31 O.R. (3d) 594; Roberts v. Moranna (1998), 37 O.R. (3d) 333 - 10 - After January 1, 2002, the fixing of costs became the rule rather than the exception. The trend towards a judicial fixing of costs has continued with the changes to Rule 57 and the new Costs Outline. Assessments before Assessment Officers continue to be the exception to the rule. Don’t expect the Courts to be willing to look at pages and pages of dockets. The case law already provided for a summary procedure when fixing costs. Rule 57.01(7) simply makes it even clearer that costs will be dealt with quickly and simply. PRACTICE POINTS Having regard for the changes implemented with the birth of the new Costs Outline, I might suggest that you consider the following practice points as you work your way forward under the new system: (a) When preparing a Statement of Claim, assuming the circumstances might allow for a reasonable argument on the point, consider seeking, in the prayer for relief: The Plaintiff’s costs on a full indemnity basis, pursuant to the provisions of Rule 57.01(4)(d). For example, the Courts might be persuaded when dealing with claims on behalf of a minor that the principle of full indemnity is an appropriate one to invoke. Similar arguments could be raised in the context of a gross imbalance of power between litigants or extremely risky files that are advanced, when the client could not otherwise pay, but for a successful outcome. (b) While not strictly related to the new Costs Outline, I would be remiss if I did not point out to you the language from the Ontario Court of Appeal, which recognizes that the tariff system for disbursements has grown out of date. As expressed in Moon v. Sher, there is an opportunity to expand the recovery of disbursements to include items that, on its face, would seem to be excluded - 11 - from the assessable disbursement list. Please note the following comments from the November 16, 2004 unreported costs decision in Moon v. Sher: It would seem, therefore, that amounts disbursed for Quicklaw services, courier services, stationary and postage may be recoverable under Tariff item 35 if the service or expense is “reasonably necessary for the conduct of the proceeding”, the amount is reasonable and has been charged to the client, and the disbursement does not fall within standard office overhead. Indeed, as Quicklaw and similar search vehicles have become convenient aids to research, although not found in the Tariff, their costs should be recoverable as disbursements provided they are not excessive and have been charged to the client. It is for the party seeking recovery of the disbursements to satisfy these criteria. In my view, the GLOI has satisfied the criteria with respect to Quicklaw and courier expenses. It is also entitled to the reasonable cost for making copies, but based on considerably fewer copies than were made. As the GLOI did not object to Moon’s position that stationary and postage expenses were not recoverable because they come within standard office overhead, these expenses are not recoverable. (c) Time will tell, but I believe that you will be doing yourself a disservice if you do not restrict your costs submissions to the three pages of the Cost Outline. Rule 57.01(7) prompts the Court to adopt the simplest and most expeditious process for fixing costs. Form 57B is specifically stated to be a document of no more than three pages in length. There is a de-emphasis on time dockets, and a corresponding de-emphasis on a line-by-line analysis of the time in the file. Make your pitch, make it reasonable, and be sure to relate it to all of the factors, not just the amount of the time in the file, and I believe that you will be doing your client a good service. - 12 - (d) There has long been a convention that, prior to trial, a defendant in a personal injury lawsuit would pay the plaintiff costs that are based on 15% of the damages and interest. I intend to argue, pursuant to Rule 57.01(1)(0.b), that the unsuccessful party could reasonably expect to pay 15% prior to a trial, and something more than 15% if the matter was required to be tried, quite apart from any argument that might exist with respect to substantial indemnity costs or full indemnity costs. As files begin to come to trial that have been advanced pursuant to a formal Contingency Fee Agreement, as now permitted under the provisions of the Solicitors Act and the related regulations, I would argue, on behalf of a plaintiff, that the time in the file is irrelevant and that the losing party must be providing partial indemnity of what is effectively the contingency fee. This will no doubt be a contentious issue, particularly for defence counsel, and we will have to see whether this argument is accepted in whole or in part. Clearly, there is a new direction that the reasonable expectation of the paying party is a consideration, amongst other factors, so it would seem to me that the rule of thumb with respect to costs will have some application before the Court. Again, this advice might relate more specifically to personal injury cases, but I would argue, if a case resolved prior to trial, that the reasonable expectation of the defendant would be to go out of the action on a without costs basis. If a defendant insists upon recovering its costs, I would again argue that no costs ought to be ordered, in part because common convention within this practice area would suggest that the defendant would not really have any reasonable expectation of recovering costs in those circumstances. Again, this would be - 13 - a contentious argument, particularly for defence counsel, but I would expect to see this argument made. (e) Rule 51, relating to Requests to Admit, has been around for some time, and probably still remains an under-utilized tool. Aside from the benefit that can be gained from the perspective of narrowing issues at trial, a recalcitrant opponent can be made to pay the price in terms of costs by failing to admit those facts which ought to be admitted. Reference to this could be made pursuant to Rule 57.01(1)(g) which discusses a party’s denial or refusal to admit anything that should have been admitted. QUESTIONS FOR THE FUTURE As the case law is generated under the new Costs Outline, look for creative counsel to explore the issues raised by the changes to the Rules of Civil Procedure. I see the opportunity for novel arguments that can be raised by both plaintiff and defence counsel, on behalf of winning and losing parties. Look for some type of judicial consensus or appellate review on the following issues: 1. Is there a new category of cost recovery called “full indemnity”, which means something more than either partial indemnity or substantial indemnity? 2. If the case lasts several years and resolves with only a small fraction of the work having been performed since July 1, 2005: (a) does the Costs Grid apply to any of the work that was performed prior to July 1, 2005; or (b) is the entire matter adjudicated pursuant to the new Rule 57 and the Costs Outline? - 14 - 3. What room will there be for the awarding of a premium in personal injury cases in which the client and solicitor have agreed to proceed on a contingency fee basis? 4. Will Courts be prepared to use the full indemnity provisions to award something more than substantial indemnity costs to a successful plaintiff who has retained counsel pursuant to a contingency fee basis? In these circumstances, the 1.5 multiplier of partial indemnity costs may fall far short of actually indemnifying the winning party, since the fee is outcome-based rather than hourly-rated. CONCLUSION Many commentators will tell you that nothing much has changed from the Costs Grid to the Costs Outline, except for the new style of the form to be used. They might be right. Certainly, time will tell. My view, however, is that the changes are broader than might otherwise appear at first blush. Look for full indemnity, contingency fees, hourly rates, and reasonable expectations, among other issues to generate some interesting new cost case law in the next couple of years. PART I – COSTS GRID Where students-at-law or law clerks have provided services of a nature that the Law Society of Upper Canada authorizes them to provide, the fees for those services may be assessed and allowed under this costs grid. Where counsel has special expertise, his or her hourly rate classification may be varied accordingly. 1. Fees other than Counsel Fee Hourly rates for pleadings, mediation under Rule 24.1 or Rule 75.1, financial statements, discovery of documents, drawing and settling issues on special case, setting down for trial, premotion conference, examination, pre-trial conference, settlement conference, notice or offer, preparation for hearing, attendance at assignment court, order, issuing or renewing a writ of execution or notice of garnishment, seizure under writ of execution, seizure and sale under writ of execution, notice of garnishment, or for any other procedure authorized by the Rules of Civil Procedure and not provided for elsewhere in the costs grid. Partial Indemnity Scale Law Clerks Student-at-law Lawyer (less than 10 years) Up to $80.00 per hour Up to $60.00 per hour Up to $225.00 per hour Substantial Indemnity Scale Up to $125.00 per hour Up to $90.00 per hour Up to $300.00 per hour Up to $400.00 per hour Up to $450.00 per hour Lawyer (10 or more but less Up to $300.00 per hour than 20 years) Lawyer (20 years and over) 2. Up to $350.00 per hour Counsel Fee – Motion or Application Partial Indemnity Scale Substantial Indemnity Scale Up to $800.00 Up to $1,500.00 Up to $2,400.00 Up to $3,500.00 0.25 hour 1.00 hour 2.00 hours (half day) 1 day Up to $400.00 Up to $1,000.00 Up to $1,400.00 Up to $2,100.00 3. Counsel Fee – Trial or Reference Partial Indemnity Scale Substantial Indemnity Scale Up to $2,500.00 Up to $4,000.00 Up to $17,500.00 Half Day Day Week 4. Counsel Fee - Appeal Up to $1,500.00 Up to $2,300.00 Up to $9,500.00 Partial Indemnity Scale 1.00 hour 2.00 hours (half day) 1 day Up to $1,000.00 Up to $1,250.00 Up to $2,000.00 Substantial Indemnity Scale Up to $1,500.00 Up to $2,000.00 Up to $4,000.00 ONTARIO SUPERIOR COURT OF JUSTICE COSTS OUTLINE The Plaintiff provides the following outline of the submissions to be made at the hearing in support of the costs the party will seek if successful: Fees (as described below) Estimated counsel fee for appearance Disbursements (as detailed in the attached appendix) Total The following points are made in support of the costs sought with reference to the factors set out in subrule 57.01(1): l the amount claimed and the amount recovered in the proceeding » l the complexity of the proceeding » l the importance of the issues » l the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding » l whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution » l a party's denial of or refusal to admit anything that should have been admitted » l the experience of the party's lawyer » l the hours spent, the rates sought for costs and the rate actually charged by the party's lawyer FEE ITEMS (e.g. pleadings, affidavits, crossexaminations, preparation, hearing, etc.) PERSONS (identify the lawyers, students and law clerks who provided services in connection with each item together with their year of call, if applicable) HOURS (specify the hours claimed for each person identified in column 2) PARTIAL INDEMNITY RATE (specify the rate being sought for each person identified in column 2) ACTUAL RATE* * Specify the rate being charged to the client for each person identified in column 2. If there is a contingency fee arrangement, state the rate that would have been charged absent such arrangement. l any other matter relevant to the question of costs » LAWYER'S CERTIFICATE I CERTIFY that the hours claimed have been spent, that the rates shown are correct and that each disbursement has been incurred as claimed. October », 2005 Signature of lawyer INFORMATION FOR THE PROFESSION In preparing its report to the Rules Committee that led to the changes in fixing costs to be implemented on July 1, 2005, the Costs Subcommittee gathered substantial information and consulted widely. Based on this, the following may provide some guidance to the profession as these changes are implemented. It is anticipated that in considering rates, as one of the various relevant factors, courts will normally treat the rates set out below as maximum rates when fixing partial indemnity costs. These rates are the maximums that were available under the costs grid. It is further anticipated that the maximum rates would apply only to the more complicated matters and to the more experienced counsel within each category. The rates used in costs submissions will normally come within the range established by these maximums as appropriate to the particular matter after giving consideration to the factors set out in r. 57.01(1) which now include the amount an unsuccessful party could reasonably expect to pay and the principle of indemnity. Finally, it is the intention that these guidelines will be reviewed periodically so that their currency can be maintained, in light of accumulated experience. In addition to the hearing itself, these guidelines encompass mediation under r. 24.1, discovery of documents, drawing and settling issues on a special case, setting down for trial, pre-motion conferences, examinations, pre-trial conferences, settlement conferences, notices or offers, preparation for hearing, attendance at assignment court, orders issuing or renewing a writ of execution or notice of garnishment, seizure under writ of execution, seizure and sale under writ of execution, notices of garnishment or any other procedure authorized by the Rules of Civil Procedure. Law Clerks Student-at-law Lawyer (less than 10 years) Lawyer (10 or more but less than 20 years) Lawyer (20 years and over) Maximum of $80.00 per hour Maximum of $60.00 per hour Maximum of $225.00 per hour Maximum of $300.00 per hour Maximum of $350.00 per hour The Costs Subcommittee of the Civil Rules Committee 564244.1