In Di Nunzio v Di Nunzio, the Respondent brought a motion and sought an Order for the payment of her costs from one Mr. Forrest. Mr. Forrest was the partner of the Applicant but not a party to the Application.

Initially, the Applicant challenged the Last Will and Testament of her mother. The Will challenge was dismissed on October 8, 2021, with costs to the Respondent of $111,395.44.

During cross examinations, Mr. Forrest admitted that he spoke to the Applicant’s lawyer and the Applicant was not included in all of the emails exchanged between Mr. Forrest and her lawyer. Mr. Forrest initially refused to produce these emails.

The Respondent alleges that Mr. Forrest’s involvement with the Applicant’s lawyer, resulted in the prolonging of the unsuccessful Will challenge. This resulted in significant costs awarded to the Respondent. However, the Applicant is unable to pay the costs. Thus, the Respondent brought a motion to seek the costs from Mr. Forrest.

The Applicant, prior to the motion hearing, agreed to produce all emails from her lawyer from August 2018 to October 2019, which period was not limited to the emails including Mr. Forrest. The theory presented by the Applicant was that the emails demonstrated Mr. Forrest was a part of the litigation and inside the scope of privilege. The Court reviewed all the emails up to the hearing between the Applicant and her lawyer including those involving Mr. Forrest. The Court was satisfied that privilege was not waived due to Mr. Forrest’s involvement and emailing of the Applicant’s lawyer. Mr. Forrest was successful in this motion and the motion was dismissed by the Court and he was entitled to his costs of the motion.

In this case, parties involved in the estate litigation had unrecoverable litigation costs. The Respondent’s costs remain with interest added as collateral to the estate litigation. Mr. Forrest cannot recover his legal costs and the costs he contributed to the Application are also not recoverable. Further, the Applicant did not receive the $165,000.00 offered by the Respondent to settle the case as she rejected this offer before the Application hearing.

This case is a great example that parties involved in litigation should not rely on the Courts to recover their litigation costs as they may be unable to recover these costs.