In this personal injury claim in Vernon British Columbia (Vedan v. Stevens) the applicant brought into the negligence lawsuit says that the defendant conducted himself in a manner which was deserving of reproof or rebuke. They say that the defendant “egregiously commenced and continued prosecuting the third party claims to trial…without ever having any significant factual foundation for the allegations in the pleadings…”. They also rely upon an offer to settle with no costs to either side.
As Judge Beames aptly pointed out:
“[4] I do not intend to repeat my reasons following the liability trial. Suffice it to say that I did dismiss the claim against the third parties. I recognize, as submitted by the third parties, that some of the specific allegations of negligence made against the third parties in the third party notice were at odds with the evidence of the defendant himself, in statements given to his insurer, in his examination for discovery, and at trial. However, I am not prepared to conclude that the commencement of the third party proceedings was egregious, reprehensible, or deserving of rebuke. Consequently, this is not a case in which special costs based on the analysis in Garcia v. Crestbrook Forest Industries Ltd., [1994] 119 D.L.R. (4th) 740 (B.C.C.A.) can be founded. Similarly, I am not prepared to conclude that a warning to the defendant that the third parties would seek full indemnity level costs if the third party proceedings were dismissed is a sufficient basis upon which this court would or should award such costs.”
The BC Supreme Court Civil Rules, Rule 9-1 provides:
“(4) The court may consider an offer to settle when exercising the court’s discretion in relation to costs.
(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:
(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;
(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;
(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;
(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.
(6) In making an order under subrule (5), the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;
(b) the relationship between the terms of settlement offered and the final judgment of the court;
(c) the relative financial circumstances of the parties;
(d) any other factor the court considers appropriate.”
The court was satisfied in this case that the offer ought reasonably to have been accepted by the defendant. The judge concluded that the third parties were entitled to their taxable costs, on Scale B, until the date of the offer to settle, and double costs thereafter against the defendant. Posted by Mr. Renn A. Holness
Issue: Should you get your personal injury legal fees paid in full by the other side if they reject offer which includes a claim for you full legal fees?