A personal injury lawyer’s duty to guard confidentiality and to serve the best interest of the client is recognized in this Court of Appeal decision : Nuttall v. K.,2018 BCCA 341.
The lawyer successfully appealed a special costs order against him for adding a party to a hit and run personal injury claim, which was found later not to be the driver. The lawyer’s conduct in applying to add a defendant did not approach the reprehensible conduct required to justify an order for special costs against him as counsel.
It was only ICBC that opposed adding a party. The person incorrectly added did not attend himself to oppose the application. Instead, it was opposed only by ICBC.
The underlying injury claim involved a hit and run accident that occurred outside the Wheelhouse Pub in Surrey. The lawyer added a party on information obtained after his investigation on behalf of the claimant.
After an investigation by the RCMP did not reveal the identity of the driver, the claimant’s lawyer took steps himself to identify the hit and run driver. This was in part to enable the claimant to have access to ICBC third party liability insurance. The identity of the driver was important given the limits on insurance coverage in the circumstances and the value of the personal injury claim for damages was estimated by the lawyer to be between $2.5 and $4 million.
In making the application the lawyer relied on the information he obtained from the lawyer for the Wheelhouse Pub that Mr. D. was the driver. That information turned out to be erroneous, and after the claimant’s lawyer learned this, he discontinued the action against Mr. D. As the Court of Appeal made clear in allowing the appeal and dismissing special costs against the lawyer:
[27] In Young the court directed judges to be “extremely cautious” in awarding costs personally against lawyers given their duties to guard confidentiality of instructions and to bring forward with courage even unpopular causes:
… A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties or his or her calling.(Nuttall v. K.,2018 BCCA 341)