The claimant in this reasonable offer personal injury case(Gulbrandsen v. Mohr,2013 BCSC 1481) was a passenger in a car accident. The Judge accepted the claimant was injured in the accident awarding her $28,000.0 in damages, but found that she was not a trustworthy witness. Her evidence about lost time at work was vague and she had no records to establish when she was away from work. She also made a claim for the cost of medical marijuana of about $100.00 per week but testified that before the accident she often used marijuana recreationally. She failed to beat an earlier offer of $50,000.00 before the trial and the defendant applied successfully for an award of double costs.
On reconsideration of the costs award, and before entering judgment, the Judge found that he had failed to review a few important cases and that double costs would be an injustice to the injury claimant. Importantly the claimant did not have a lawyer representing her at the first costs application and did not provide a full and proper argument for the Judge.
Although the Supreme Court Civil Rules are created by statute and the provisions in regard to an award of double costs constitute a complete code, caselaw informs its’ application. Quoting from Currie v. Mckinnon:
[18] I think it certainly can be argued that if a defendant who has made an offer to settle in an amount higher than the amount awarded to the plaintiff at trial (and that is what has been done in this case) was then awarded double costs, this would skew the procedure in favour of defendants and unfairly penalize and pressure plaintiffs. This is because a plaintiff who rejected an offer to settle would potentially risk a triple cost penalty if he or she were to win at trial an amount less than the offer. The plaintiff would suffer loss of the costs that he or she would normally receive on obtaining judgment at trial, and face double costs payable to the defendant.
[19] In my view, there is a good reason to apply Rule 9-1 in a way that is even-handed, or more even-handed, as between plaintiffs and defendants. I would say for this reason one would expect to see double costs awarded to a defendant, using the offer to settle procedure, in exceptional circumstances only, such as a situation where the plaintiff’s claim was dismissed all together after a plaintiff rejected an offer to settle.
The Judge therefore found that the earlier costs award must be varied to avoid an injustice and a misapplication of the law. The claimant was awarded her costs up to the date of the defence offer and the defendant was entitled to single costs from that date.
Posted by Personal injury Lawyer Mr, Renn A. Holness, B.A. LL.B.
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