Murphy et al. v. Cahill et al., 2014 ABQB 274

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 01, 2014
• Citations: 2014 ABQB 274;(2014), 587 A.R. 384 (QB)

Murphy v. Cahill (2014), 587 A.R. 384 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.026

Gerald Murphy and Gerald Murphy in his capacity as Trustee of the Gerald Murphy's Children's Parallel Life Interest Settlement Trust (plaintiff/applicant) v. Margaret Cahill, Christopher Cahill, 1248429 Alberta Ltd., 554168 Alberta Ltd., 1247738 Alberta Ltd. and Canadian Consolidated Salvage Ltd. (defendants/respondents)

(1203 04666; 2014 ABQB 274)

Indexed As: Murphy et al. v. Cahill et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

May 2, 2014.

Summary:

Murphy instituted legal proceedings against Cahill in Ireland and separate legal proceedings against Cahill in Alberta. Although both these proceedings might be characterized as debt proceedings, the Irish and Alberta claims were distinct. In the Alberta proceedings, Cahill failed to attend questioning and alleged a medical reason for doing so. Cahill had suffered a stroke a few days before the Irish trial was to begin. He provided a medical opinion with respect to his health and depression in those proceedings. Murphy sought to introduce the medical opinion in the Alberta proceedings. Cahill applied to strike out as "improper" the use of the medical opinion in the Alberta proceedings.

The Alberta Court of Queen's Bench, in a decision reported at (2014), 582 A.R. 224, dismissed the application. Murphy applied to settle the minutes of the order resulting from the court's decision.

The Alberta Court of Queen's Bench adopted Murphy's proposed form of order.

Practice - Topic 7056

Costs - Party and party costs - Entitlement to party and party costs - Entitlement to two sets of costs - Murphy instituted legal proceedings against Cahill in Ireland and separate legal proceedings against Cahill in Alberta - Although both these proceedings might be characterized as debt proceedings, the Irish and Alberta claims were distinct - In the Alberta proceedings, Cahill failed to attend questioning and alleged a medical reason for doing so - Cahill had suffered a stroke a few days before the Irish trial was to begin - He provided a medical opinion with respect to his health and depression in those proceedings - Murphy sought to introduce the medical opinion in the Alberta proceedings - Cahill applied to strike out as "improper" the use of the medical opinion in the Alberta proceedings - The application judge dismissed the application - Murphy applied to settle the minutes of the order resulting from the court's decision - Cahill objected to Murphy's proposed disposition of costs, namely his request for awarding two sets of costs against the same defendant - The Alberta Court of Queen's Bench adopted Murphy's proposed form of order - It was appropriate to award two sets of costs as two separate issues were raised by two separate law firms, each requiring and deserving separate treatment, even though the ultimate common objective of the two applications was to spare Cahill cross-examination in person relative to an affidavit that he had filed and served - See paragraphs 3 and 25 to 31.

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - Murphy instituted legal proceedings against Cahill in Ireland and separate legal proceedings against Cahill in Alberta - Although both these proceedings might be characterized as debt proceedings, the Irish and Alberta claims were distinct - In the Alberta proceedings, Cahill failed to attend questioning and alleged a medical reason for doing so - Cahill had suffered a stroke a few days before the Irish trial was to begin - He provided a medical opinion with respect to his health and depression in those proceedings - Murphy sought to introduce the medical opinion in the Alberta proceedings - Cahill applied to strike out as "improper" the use of the medical opinion in the Alberta proceedings - The application judge dismissed the application - Murphy applied to settle the minutes of the order resulting from the court's decision - Cahill objected to Murphy's proposed disposition of costs, namely to Murphy's reliance on what Murphy described as a Calderbank letter - The Alberta Court of Queen's Bench adopted Murphy's proposed form of order - Even if the letter could not properly be characterized as a Calderbank letter, that letter could be treated as an offer of judgment and the court was entitled to take that letter into account as an informal offer in awarding costs - See paragraphs 4 and 8 to 24.

Cases Noticed:

Daved v. Daved, [2010] A.R. Uned. 758; 2010 ABQB 696, refd to. [para. 6].

Walsh v. Mobil Oil Canada et al. (2012), 548 A.R. 41; 2012 ABQB 527, refd to. [para. 6].

Horizon Resource Management Ltd. et al. v. Blaze Energy Ltd. et al. (2013), 544 A.R. 289; 567 W.A.C. 289; 2013 ABCA 139, refd to. [para. 7].

Chisholm v. Lindsay (2013), 560 A.R. 97; 2013 ABQB 157, refd to. [para. 7].

Roach v. Dutra (2010), 288 B.C.A.C. 141; 488 W.A.C. 141; 5 B.C.L.R.(5th) 95; 2010 BCCA 264, refd to. [para. 7].

Peter Crouch v. King's Healthcare NHS Trust [2004] EWCA Civ 1332, refd to. [para. 7].

Walker Construction (UK) Ltd. v. Quayside Homes Ltd., Peter Brett Associates LLP [2014] EWCA Civ 93, refd to. [para. 7].

Counsel:

Sandeep K. Dhir and Lindsey E. Miller (Field LLP), for the applicant, Gerald Murphy;

Terrence Warner (Miller Thomson LLP), for the respondent, Christopher Cahill, Sr.

This application was heard was heard on May 1, 2014, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on May 2, 2014.