I was going to add what follows to the numerous comments posted in response to the posting by John Swan on 28 June 2007 called "Judges and Electronic searches". Instead, I decided to start a fresh posting.
The issue is trying to predict when a court or taxing officer will award costs to the winning party for their disbursements of charges for searches of online databases such as Quicklaw or WestlaweCARSWELL.
The minutes of the June 2007 meeting of the Legal Research Section of the CBA BC Branch refer to a recent decision in BC where Quicklaw charges were disallowed – see Prehara v. Royer, 2007 BCSC 912:
Quicklaw Research – $127.50
[39] Once again, the evidence supporting this particular disbursement is scant. According to the statements of plaintiff’s counsel, it may relate to investigations of pension related losses or perhaps even quantum of non-pecuniary damages. The case law acquired was not before me.
[40] Upon my questioning, it was revealed that the charge amounts to 255 pages acquired at $.50 per page. The law firm pays a monthly fee (amount undisclosed) for Quicklaw services.
[41] As I have decided in other cases, Quicklaw can be a necessary and proper disbursement but that is not a given. There must be some evidence justifying its use. The defendants submit that any authority is available through the free services of the courthouse library website, CanLit [sic] or a hard cover report series. Furthermore, this case did not involve any unusual legal issues requiring Quicklaw’s use.
[42] I accept the defendants’ submissions. The plaintiff has not justified the necessity or propriety of this charge. It is disallowed.
Given the "scant" evidence presented, I am not too surprised that Quicklaw charges were disallowed. In Chapter 1 of my Irwin Law text (Legal Research and Writing, 2d ed.), I reviewed at the time what was a fairly exhaustive list of Canadian court cases where a court or taxing officer allowed or disallowed the cost of searching online legal databases to the winning party. I argued that online search charges should be recoverable where the searches were necessary and the cost reasonable. To recover such charges, I argued that it is critical for the lawyer to lead evidence to show the reasonableness and cost-effectiveness of the online searches (p. 9):
Thus, where a party is seeking to recover the solicitor-client costs of research or the disbursement cost of online searches, it will be necessary to show that the research conducted was reasonable and necessary. Even though there are these contradictory decisions regarding whether online computer search charges should be allowed as taxable disbursements to be paid by the losing party, it is clear that courts will allow such charges, and the costs of conducting any type of print or online legal research, where it can be established that the research was necessary and that the costs or time incurred was reasonable under the circumstances given the applicable issues facing the lawyer. In seeking to recover legal research costs and online search disbursements, the lawyer should be prepared to lead evidence regarding the necessity and complexity of the research, the advantages of using online research databases for the research, and the agreement of the client to incur such costs.
As such, firms should lead evidence on the following specific points, as applicable:
- The evidence led should cover the point that the online commercial database has a larger scope of case law and a more sophisticated "noter upper" that cannot yet be matched by free online resources
- If applicable, and if used by the lawyer, evidence could be led that the commercial databases are the only source for particular legal information (e.g., some tribunal decisions, the Index to Canadian Legal Literature, Carswell's classification scheme, etc.)
- Although you would think it unnecessary, evidence could be led to estimate the time in hours it would take to try to do the same searches using only print resources and the advantages of online keyword searches that cannot be duplicated using print indexes
- The lawyer should also set out the details of the searches conducted, on which databases, and what the results were
- After the fact (i.e., just prior to the taxation), if true, the lawyer could try running the same searches on CanLII and if the results are different (i.e., fewer results), the lawyer could use that information as evidence
- If one has the prior written agreement of the client to pay such disbursements that should also be led into evidence as an indication of the reasonableness of the cost.
It is wrong for some courts to reason that online search charges should be disallowed on the basis that such costs are like the overhead the firm incurs for maintaining a print library. It is wrong because the print library is used for all purposes for all clients and are (usually) not related to a specific file or client. Online search charges, on the other hand, usually are specific to a particular client or file just like the cost of a PPSA Registration charge, for example.
