What are the exceptions to special costs for pre-litigation conduct?
British Columbia, Canada
The following excerpt is from ASEAN Technology Partners Inc. v. National Research Council of Canada, 2007 BCSC 1539 (CanLII):
The general rule is that special costs will not be awarded for pre-litigation conduct. The two exceptions are where there is misconduct which amounts to: (a) fraud; or (b) unconscionability giving rise to the litigation; and it is the only way the court can show its disapproval of such conduct: Vukelich v. Mission Institution, 2002 BCSC 495, 18 C.P.C. (5th) 389, rev'd on other grounds 2005 BCCA 75, 38 B.C.L.R. (4th) 132.
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