Is a party entitled to recover 20% of a disbursement incurred for an issue upon which they failed?

A party is not entitled to recover any part of a disbursement incurred for an issue upon which they did not succeed. Waterhouse v. Fedor (supra). The difficulty is that it may not be possible to isolate, in an individual disbursement account, any discrete issue. Where it is not possible to separate and assign a quantum to any specific issue, then the whole of the disbursement, if properly incurred, would be part of the account to be passed by the registrar. I propose to say no more at this point other than that the plaintiff is entitled to recover 20 percent of its taxable disbursements. The defendant is entitled to recover 80 percent of its taxable disbursements.

In these remarks, Mr. Justice Vickers referred to Waterhouse v. Fedor, [1986] B.C.J. No. 1427, a medical malpractice action in which Mr. Justice Legg found liability against the defendant and assessed the plaintiff’s damages. In Waterhouse v. Fedor, [1987] B.C.J. No. 1033, Mr. Justice Legg considered the plaintiff’s costs for a “gross-up” claim and its corresponding disbursements for which the plaintiff was unsuccessful. He considered the then Rule 57(8), now Rule 57(15) of the Rules: Costs of part of proceeding (8) The court may award costs which relate to some particular issue or part of the proceeding or may award costs except so far as they relate to some particular issue or part of the proceeding.