Judgments

Decision Information

Decision Content

T-167-80
Baxter Travenol Laboratories of Canada, Limited; Travenol Laboratories, Inc. and Baxter Travenol Laboratories, Inc. (Plaintiffs)
v.
Cutter (Canada), Ltd. (Defendant)
Trial Division, Dubé J.—Ottawa, October 15, 16, 17 and 26, 1984.
Practice — Contempt of court — December 11, 1980 judg ment declaring plaintiffs' patent infringed, enjoining defendant from manufacturing or selling blood bags, and ordering defendant to destroy or deliver up infringing goods — Formal judgment entered December 18, 1980 — Defendant selling inventory in meantime — Trial Division and Court of Appeal holding defendant not in breach of judgment — Supreme Court of Canada holding acts, while not breaches of injunc tion, possibly constituting contempt — Matter referred back to Court to decide whether knowledge of prohibition in December 11 judgment and whether contravention of judgment — Mens rea not required to establish contempt — Consideration of good faith not part of mandate granted by Supreme Court of Canada — Corporation liable for servant who contravenes court order in course of duty — Defendant guilty of contempt — Fine imposed and costs — Federal Court Rules, C.R.C., c. 663, RR. 337(2), 355(2).
Practice — Costs — Contempt of court — No financial gain for plaintiffs — Proceedings necessary to maintain orderly administration of justice — Costs awarded on solicitor-and- client basis.
An order was issued against the defendant to show cause why it should not be condemned for contempt of court. Written reasons for judgment, declaring that the plaintiffs' patent had been infringed, were delivered on December 11, 1980. The defendant was enjoined from manufacturing, selling or dis tributing multiple blood bag sets, and was ordered to destroy or deliver up all infringing goods. The formal judgment was settled and entered on December 18, 1980. Between December 11 and 18, the defendant disposed of the goods by sale and otherwise. At an earlier show cause hearing, it was held on a preliminary objection in the Trial Division and later in the Court of Appeal that the defendant was not in breach of the judgment, which had not been pronounced until December 18. On appeal, the Supreme Court of Canada agreed that, while the acts complained of would not be breaches of the injunction, they might still constitute contempt of the judgment. The appeal was allowed and the matter referred back to this Court on the merits. Upon a motion for directions it was held that the matters to be proven were 1) that the defendant knew of the
prohibitions in the December 11 judgment and 2) that there was a contravention of a prohibition therein.
Held, the defendant is guilty of contempt of court and liable to a fine of $100,000, plus party-and-party costs and the plaintiffs' costs on a solicitor-and-client basis.
The evidence established beyond a reasonable doubt that the defendant knew of the existence of the prohibitions in the December 11 reasons for judgment, and that the defendant contravened the prohibitions by failing to destroy or deliver up the goods.
The defendant argued that, as its solicitor did not possess a "guilty mind", it should not be found guilty of contempt. The defendant relied on Koffler Stores Ltd. v. Turner, [1971] F.C. 145; 2 C.P.R. (2d) 221 (T.D.), where the Judge would not "punish the defendants for having, in good faith, given a possibly wrong but not unreasonable interpretation to an order of this Court." Borrie and Lowe's Law of Contempt indicates, however, "that it is not necessary to show that the defendant ... intends to interfere with the administration of justice."
Under the mandate granted by the Supreme Court of Canada, neither the good faith of the defendant nor its error in law are factors to be considered. The Supreme Court was aware of the defendant's legal position on contraventions of the December 11 judgment, but did not include that factor in its directions to this Court.
The defendant argues that it should not be found guilty because of the errors of its legal agents since agency is a civil concept and these proceedings are quasi-criminal at least. In matters of civil contempt, the liability of a corporate body is dependent on the vicarious liability principle. A corporation is liable for its servants when they, in the course of duty contra vene an order of the Court. It is no defence for a company to show that its officers were unaware of the terms of the order or that they failed to realize that they were in breach of the order.
Rule 355(2) provides that the penalty for contempt of court is a fine or imprisonment. There has been interference with the orderly administration of justice. There is considerable public interest in maintaining the authority of justice so the penalty must be severe enough to suit the gravity of the contraventions. A fine of ten per cent of the value of the goods not delivered up would be appropriate to indicate the severity of the law, and yet be sufficiently moderate to show the temperance of justice.
The plaintiffs are entitled to costs on a solicitor-and-client basis. They should not have to bear any of the costs of these proceedings which were necessary to maintain the orderly administration of justice, but will bring them no personal benefit.
CASES JUDICIALLY CONSIDERED
APPLIED:
Knight v. Clifton, [1971] Ch. 700; [1971] 2 All ER 378 (C.A.); Stancomb v. Trowbridge Urban Council, [1910] 2 Ch. 190; Re Mileage Conference Group of the Tyre Manufacturers' Conference, Ltd.'s, Agreement, [1966] 2 All E.R. 849 (R.P.C.).
CONSIDERED:
Koffler Stores Ltd. v. Turner, [1971] F.C. 145; 2 C.P.R. (2d) 221 (T.D.).
REFERRED TO:
Giles (C H) & Co Ltd v Morris, [1972] 1 All ER 960 (Ch. D.); In Re Rossminster Ltd and Tucker (1980) Times, 23 May; Canada Metal Co. Ltd. et al. v. Canadi- an Broadcasting Corp. et al. (No 2) (1974), 48 D.L.R. (3d) 641 (Ont. H.C.); (1975), 65 D.L.R. (3d) 231 (Ont. C.A.); Re Gaglardi (1960), 27 D.L.R. (2d) 281 (B.C.C.A.); Heaton Transport (St. Helens) Ltd. v. Transport and General Workers' Union, [1973] A.C. 15; [ 1972] 2 All ER 1214 (H.L.); Z Ltd. v. A-Z and AA-LL, [1982] Q.B. 558; [1982] 1 All ER 556 (C.A.); In Re Garage Equipment Association's Agreement (1964), 4 R.P. 491 (R.P.C.); Re Galvanized Tank Manufacturers' Association's Agreement, [1965] 2 All E.R. 1003 (R.P.C.).
COUNSEL:
Alan J. Lenczner, Q.C. and Colleen E. R. Spring for plaintiffs.
Gordon F. Henderson, Q.C. and George Fisk for defendant.
SOLICITORS:
McCarthy & McCarthy, Toronto, for plain tiffs.
Gowling & Henderson, Ottawa, for defen dant.
The following are the reasons for judgment rendered in English by
DUBÉ J.: The defendant appeared before the Court in Ottawa on October 15, 16 and 17, 1984 pursuant to two orders to show cause why it should not be condemned for contempt of court for having acted in such a way as to interfere with the orderly administration of justice or to impair the authority or the dignity of the Court with reference to reasons for judgment released by Gibson J. on December 11, 1980 [(1980), 52 C.P.R. (2d) 163
(F.C.T.D.)] (followed by an injunction order released on December 18, 1980).
The first order to show cause was granted by me on January 12, 1981. The second one, much more recent, was issued by my colleague Strayer J. on July 16, 1984. Both orders have travelled their separate ways on tortuous procedural paths which led them to this contempt hearing. A general overview of the factual situation and a brief out line of the previous proceedings are necessary for the full comprehension of these reasons for judgment.
1. The history of the case.
A trial of the patent infringement case involving the plaintiffs ("Baxter") and the defendant ("Cut- ter") was heard by Gibson J. in November 1980. He delivered his written reasons for judgment on December 11, 1980 wherein the patent was declared to be valid and to have been infringed. At the end of his reasons for judgment [at page 172], Gibson J. held that "Baxter is entitled to judgment against Cutter, declaring, ordering and adjudging as follows". There followed seven specific para graphs which inter alia enjoined Cutter from "manufacturing, offering for sale, selling or dis tributing multiple blood-bag sets" and ordering Cutter "to destroy ... or deliver up" to the plain tiffs all infringing goods in its "possession, custody or control". In his last paragraph, Gibson J. asked counsel to "prepare in both official languages an appropriate judgment to implement the foregoing conclusions and may move for judgment in accord ance with Rule 337(2)(b)". The formal judgment was settled and entered on December 18, 1980.
What is alleged to have happened during that period between December 11 and December 18, 1980 is the subject-matter of the two show cause orders and of this hearing.
On January 12, 1981 Baxter obtained from me an ex parte order against Cutter to show cause why it should not be condemned for contempt of court for having breached the injunction pro nounced on December 11, 1980 by having sold the
impinged blood bags and having failed to destroy them forthwith or to deliver them up to the plain tiffs. On February 3, 1981, Cattanach J. held, on a preliminary objection by Cutter, that the acts com plained of could not be in breach of the judgment of Gibson J. which had not been pronounced on December 11, but only on December 18, 1980. The Federal Court of Appeal affirmed that judgment.
That decision was appealed to the Supreme Court of Canada. In its judgment, dated Novem- ber 3, 1983 [[1983] 2 S.C.R. 388], the Supreme Court agreed that while the acts complained of would not be breaches of the injunction granted by Gibson J. they might still constitute contempt of his judgment. The appeal was allowed and the matter was referred back to this Court for a decision on the merits.
Meanwhile, or on July 16, 1984 Baxter obtained an ex parte order to show cause from Strayer J. The purpose of the second show cause order was to clarify the foundation upon which evidence would be adduced in the hearing of the first show cause order. Cutter appealed from that order. The Fed eral Court of Appeal dismissed the appeal on October 12, 1984 and the second show cause was set to be heard on October 15, 1984 along with the first one.
2. The matters to be proven.
I now return to the judgment of the Supreme Court of Canada to seek guidance for my appreciation of this matter. Dickson J. (as he then was), speaking on behalf of the Court, agreed with Cutter that there could be no breach of the injunc tion prior to December 18, 1980, the date on which Gibson J.'s judgment took effect under Federal Court Rule 337 [Federal Court Rules, C.R.C., c. 663]. But he also said (at page 396 S.C.R.; page 7 C.P.R.) that "Contempt in relation to injunctions has always been broader than actual breaches of injunctions". In the instant case, he found that the actions of Cutter, although technically not a
' Baxter Travenol Laboratories of Canada Ltd. et al. v. Cutter (Canada), Ltd., [1983] 2 S.C.R. 388; 75 C.P.R. (2d) 1.
breach of an injunction, could still constitute con tempt because they may "tend to obstruct the course of justice". He concluded as follows at page 398 S.C.R.; pages 8-9 C.P.R.:
I therefore conclude, as a matter of law, there could be contempt between December 11 and December 18, 1980 by reason of an interference with the orderly administration of justice and an impairment of the order or dignity of the Court (Rule 355). It would be covered by paragraph (b) of the show cause order. Since this question arose as a preliminary objec tion, there has never been a finding of fact that Cutter and/or Maxwell, with knowledge of their existence, did contravene the prohibitions contained in Gibson J.'s December 11 reasons for decision. Such a determination cannot be made in this Court; it would require a reconvened hearing before the Federal Court, Trial Division.
Paragraph (b) of my show cause order referred to by Dickson J. [at page 392 S.C.R.; at page 4 C.P.R.] reads as follows:
(b) Acting in such a way as to interfere with the orderly administration of justice or to impair the authority or dignity of the Court by entering, after the commencement of trial herein, into an arrangement out of the ordinary course of trade, whereby multiple blood bag sets having valves as exemplified by those of Exhibits P-8 and P-8A to this trial, were transferred to the Canadian Red Cross and contrary to representations made to counsel for the plain tiffs as officers of the Court at the commencement of trial herein, and designed to defeat and subvert the Court's process herein and to render nugatory any injunction or order to be delivered by the Court.
After the decision of the Supreme Court of Canada was rendered, Cutter applied for an order quashing the show cause order and, in the alterna tive, for directions as to the charge under which the defendant is required to show cause. Cattanach J., who heard that motion, denied the first branch of the application but did grant directions. The learned Judge said at page 6 "that the matters which must be proven" are:
I) that Cutter and Maxwell had knowledge of the prohibitions in Mr. Justice Gibson's Reasons for Judgment dated December 11, 1980,
2) that there was a contravention of a prohibition therein.
The two show cause orders include the name of Thomas Maxwell in his personal capacity as well as in the capacity of Chief Executive Officer of the
defendant. It was agreed between the parties, shortly after the commencement of the hearing, that the charge as against Mr. Maxwell ought to be dropped so as to allow him to give evidence without incriminating himself. The Court agreed and Thomas Maxwell was called by Baxter as its first witness.
3. Knowledge of the prohibitions.
The evidence at the hearing reveals quite clearly that Cutter, through its lawyers and executive officers, had immediate knowledge of the existence of the reasons for judgment of Gibson J. Mr. James D. Kokonis of the Ottawa legal firm of Smart & Biggar, representing Cutter throughout in this matter, was called on behalf of Cutter. He testified that he had read Gibson J.'s reasons upon their release and that he telephoned Cutter Lab. Inc. of Berkeley, California, the American parent company (which had retained his firm in the first place), and informed its in-house solicitor, himself a patent attorney, and apprised him of all the material points of the judgment. Mr. Kokonis advised the American company to dispose of all the infringing goods in the possession of Cutter in Canada, as an injunction would issue on December 18, 1980.
Mr. Kokonis also communicated with Thomas Maxwell, informed him of the outcome of the case and told him he had very few days in which to divest himself of the infringing blood bags. Mr. Kokonis also discussed the matter with his associ ate, Nicholas H. Fyfe, and asked him to insist that Maxwell obtain a legal opinion from an Alberta lawyer so as to obtain the proper documents to effect legal delivery of the blood bags. The head office of Cutter is in Calgary, Alberta.
Mr. Kokonis does not consider that he was interfering with the dignity of the Court. It is his view that Gibson J. had deliberately left "a window open" so as to allow the defendant to dispose of the offending goods before the issuance of the formal order. Mr. Kokonis is an experienced patent attorney having been President of the Patent Institute of Canada and having practised at
the patent bar before the Exchequer Court and the Federal Court of Canada for the past twenty years.
Under severe cross-examination by Baxter's counsel, Mr. Kokonis maintained his position that under Rule 337 of the Federal Court, reasons for judgment do not constitute a formal judgment and have no effect until the formal judgment is pro nounced. He therefore felt he was legally right in advising his client to clear its warehouses of all the offending goods before December 18, 1980.
In support of his position he refers to the deci sion of Cattanach J. and of the three Judges of the Federal Court of Appeal who all held that the issuance of reasons for judgment does not consti tute a formal injunction.
Thomas Maxwell never did read the reasons for judgment but admits that Mr. Kokonis called him about December 11, 1980 to inform him that the trial had not been successful and to advise him to remove the inventory as quickly as possible. And four to five days before December 18, 1980 Mr. Fyfe told him to move the offending inventory out before December 18, 1980. Thomas Maxwell was aware, of course, of the ongoing litigations and that Baxter was looking for an injunction.
4. Contraventions of the prohibitions.
The evidence, documentary as well as oral, dis closes that Cutter did not destroy the blood bags and did not deliver them up to the plaintiffs, but proceeded very quickly and very efficiently to dis pose of them between December 11 and December 18, 1980.
Exhibits P-lA, P-3, P-6A, P-7A, P-8A and P-9 are Cutter invoices, with supporting documents, showing that orders were received from the Canadian Red Cross for the infringing blood bags and filled and invoiced by Cutter during the rele vant period. The amounts involved total about $150,000. As indicated in the invoice, the usual net terms are thirty days, but the following terms were
typed in on those particular invoices: "Payment may be deferred until April 1st, 1981".
Exhibits P-4A and P-5A are invoices showing total amounts of $8,121.60 and $27,764.64 respec tively. Those invoices follow orders made by the Red Cross in October, but were only filled on December 12 and invoiced on December 16, 1980. On all the invoices there is a notice to the effect that "title to merchandise listed hereon shall pass to buyer at time of delivery at point of destina tion". Some of the above shipments were for deliv ery to Western Canadian Centers but some were for the Red Cross central warehouse in Toronto.
U.S. custom form 7512 titled "Transportation Entry and Manifest of Goods Subject to Customs Inspection and Permit" shows that the goods transported by Canadian Freightways Ltd. in bond via Consolidated Freightways Corporation entered the Port of Sweetgrass, Montana, on December 17, 1980 with a destination to Ogden, Utah.
The evidence of Donald James Chapman, termi nal operator of Canadian Freightways, is to the effect that it takes three days to ship goods from Sweetgrass to Ogden. Those invoices also carried a notice that title passes at delivery. He identified the exhibits as documents used in connection with the shipments, as having been prepared in the normal course of his company's business, and as coming from his company's files.
Exhibits P-12A, P-13A, P-14A are Cutter invoices dated during the same period for blood bags sold to "Cutter Labs, Guilford, Surrey, Eng- land", but shipped to "Cutter Labs Inc., Ogden, Utah, U.S.A.". Exhibit P-15, dated December 15, 1980, indicates that the goods are sold to Cutter Labs Inc., Emeryville, California, to be shipped to Cutter Labs Ogden, Utah. This P-15 invoice refers
to the others aforementioned as "originally invoiced to Cutter England".
Exhibits P-40, P-41, P-42 and P-43 are invoices showing that Cutter made four shipments on December 15, 1980 to the warehouse of the parent company at Ogden, Utah. The value of those shipments totals $774,000. The following notice appears on the invoices:
FOR INTERCOMPANY STORAGE IN USA ONLY
NOT FOR SALE
NO CHG TO CUSTOMER
TO BE RETURNED TO CANADA
Mr. Ian James Winslow, Manager for the Canadian Red Cross, Central Services, Toronto, was subpoenaed by Baxter. He testified that up to December 1980 Cutter had only supplied the Red Cross needs for Western Canada. These shipments received in Toronto in December 1980 were for reshipment back to Red Cross centers in Western Canada. Normally the Toronto head office main tains a sixty to ninety-day supply of blood bags. In December 1980, as a result of the unusual arrivals from Cutter, the Red Cross had to rent space for the overflow of bags at another warehouse, oper ated by Central Warehousing (1968).
5. Findings of fact.
The evidence is overwhelming. I am convinced beyond a reasonable doubt, firstly that the defend ant knew of the existence of the prohibitions con tained in the reasons for judgment of Gibson J., and, secondly, that the defendant contravened the prohibitions by failing to destroy the goods, or delivering up the goods to the plaintiff, and most specially by disposing of the goods by sale and otherwise during the relevant period. That ought to settle the issues referred to this Court by the Supreme Court of Canada. However, serious points of law were raised and they deserve consideration.
6. Is mens rea required?
Mr. Kokonis obviously believed that he was legally right. He therefore did not possess the ingredient of a "guilty mind" necessary to commit a crime and, in consequence, his principal (the defendant) argues that it ought not to be found guilty of contempt.
The defendant relies in particular on Koffler Stores Ltd. v. Turner 2 wherein Pratte J. (then of the Trial Division) would not "punish the defend ants for having, in good faith, given a possibly wrong but not unreasonable interpretation to an order of this Court". The order was an injunction restraining the defendant from infringing the plaintiff's trade mark.
As to the conduct of this defendant in the instant case, Cattanach J. had this to say in his February 3, 1981 judgment (at page 9):
I expressed the view at the hearing, and to which view I adhere, that the conduct of the defendant through its chief executive officer, has the stench of sharp and perhaps even misleading practice and that the defendant and its chief execu tive officer were devoid of standards of ethics but that in all likelihood such ethics are neither expected or required in the jungle of the business world and the rewards may be greater to those vested with inherent predatory cunning.
Borrie and Lowe's Law of Contempt, 2nd ed., considers the requirement for mens rea in chapter 13, titled Civil Contempt. The answer is clearly "that it is not necessary to show that the defendant is intentionally contumacious or that he intends to interfere with the administration of justice". The authors, at page 400, quote Sachs L.J. in Knight v. Clifton' as follows:
... when an injunction prohibits an act, that prohibition is absolute and is not to be related to intent unless otherwise stated on the face of the order.
The authors quote Warrington J. in Stancomb v.
2 [1971] F.C. 145, at p. 148; 2 C.P.R. (2d) 221 (T.D.), at p. 223.
3 [1971] Ch. 700, at p. 721; [1971] 2 All ER 378 (C.A.), at p. 393.
Trowbridge Urban Council 4 who said that if a person "in fact does the act, and it is no answer to say that the act was not contumacious .... " In Re Agreement of Mileage,' contempt was held to have been established even though the acts were done "reasonably and despite all due care and attention, in the belief based on legal advice, that they were not breaches."
Finally, the mandate of the Supreme Court of Canada to this Court is crystal clear: two matters only are to be established: firstly, was there a knowledge of Gibson J.'s reasons for judgment and, secondly, was there a contravention of that judgment. Neither the good faith of the defendant nor its error in law are factors to be considered. The Supreme Court, of course, was fully aware of the defendant's legal position on contraventions of Gibson J.'s reasons for judgment and yet did not include that factor in its directions to this Court.
7. Agency and contempt.
The defendant alleges that agency is a civil concept which does not operate in criminal pro ceedings: contempt proceedings being criminal, or at least quasi-criminal, in nature, the defendant ought not to be found guilty because of the errors (denied) of its legal agents. Since Mr. Maxwell is the directing mind of the defendant, the onus is on the other side to show knowledge and bad faith on his part.
[1910] 2 Ch. 190, at p. 194, cited with approval by Lord Wilberforce in Heaton Transport ibid., at p. 109.
5 Re Mileage Conference Group of the Tyre Manufacturers' Conference, Ltd., Agreement's [1966] 2 All E.R. 849 (R.P.C.), at p. 862, cited with approval in Giles (C H) & Co Ltd y Morris, [1972] 1 All ER 960 (Ch. D.), at p. 970, per Megarry J. and in In Re Rossminster Ltd and Tucker, The London Times, May 23, 1980, p. 10. In Canada see Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (No 2) (1974), 48 D.L.R. (3d) 641 (Ont. H.C.), at p. 661, not overruled on this point (1975), 65 D.L.R. (3d) 231 (Ont. C.A.). See also Re Gaglardi (1960), 27 D.L.R. (2d) 281 (B.C.C.A.).
I cannot accept that argument. In matters of civil contempt the liability of a corporate body is dependent on the vicarious liability principle. 6 A corporation is liable for its servants when they, in the course of duty, contravene an order of the court. It has been held that it is no defence for a company to show that its officers were unaware of the terms of a court order, or that they failed to realize that they were in breach of the order.'
8. Admissibility of evidence.
Several objections were raised by counsel for the defendant as to the admissibility of the evidence adduced at other stages of this case, such as affidavits, transcripts of cross-examinations, dis coveries, etc. The rules against hearsay and self- incrimination were canvassed. The Charter of Rights [Canadian Charter of Rights and Free doms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] was invoked. It was agreed that I would rule on those objections later, if required. It is not now necessary to make those rulings as my findings are based exclusively on the oral evidence and the exhibits tendered at the hearing before me.
9. The penalty.
Under Rule 355(2) anyone who is guilty of contempt of court is liable to a fine (which in the case of an individual shall not exceed $5,000) or to imprisonment for a period not exceeding one year.
Under the circumstances of this case, I do not believe it would be fitting to apply the full rigours of the law and to impose imprisonment. However,
6 See Heaton Transport (St. Helens) Ltd. v. Transport and General Workers' Union, [1973] A.C. 15; [1972] 2 All ER 1214 (H.L.); Z Ltd. v. A-Z and AA-LL, [1982] Q.B. 558, at p. 581; [1982] 1 All ER 556 (C.A.), at p. 569, per Eveleigh L.J. and Miller Contempt of Court, p. 251, as reported in Law of Contempt (supra).
In Re Garage Equipment Association's Agreement (1964), 4 R.P. 491 (R.P.C.), at p. 505 and Re Galvanized Tank Manufacturers' Association's Agreement, [1965] 2 All E.R. 1003 (R.P.C.), at p. 1009, per Megaw P.
there has been, in my view, interference with the orderly administration of justice and an impair ment of the order or dignity of the Court. There is obviously considerable public interest in maintain ing the authority of justice in this country, so the penalty must be severe enough to suit the gravity of the contraventions.
The defendant has failed to deliver up to the plaintiffs, or to destroy, infringing goods of the value of about $1 million. A fine of ten per cent of that amount would appear to me to be appropriate to indicate the severity of the law and yet suf ficiently moderate to show the temperance of justice.
10. Costs.
The plaintiffs asked that they be given their costs on a solicitor-and-client basis as they had no possible financial gains in these contempt proceed ings. They had made the same request before the Supreme Court and Dickson J. held that it would not be a proper case for such an order at that stage. It is now appropriate at the present stage, in my view, to grant such costs to the plaintiffs. After all, they should not have to bear any of the costs of these proceedings which were necessary to main tain the orderly administration of justice but will bring them no personal benefit.
For all those reasons, the defendant is liable to a fine of $100,000 plus party-and-party costs and the plaintiffs' costs on a solicitor-and-client basis.
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