ICBC Law

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages and costs for modest injuries following a motor vehicle collision.  Although the claim was straight-forward and damages were within the jurisdiction of the Small Claims Court, the Plaintiff was awarded costs with Mr. Justice Burnyeat finding that the Supreme Court’s summary trial process is a reasonable alternative to the backlog litigants face in Small Claims Court.

In today’s case (Parmar v. Lahay) the Plaintiff sustained a modest whiplash injury as a result of motor vehicle collision.  ICBC ran the “Low Velocity Impact” defence arguing no compensation should be awarded.  The trial proceeded summarily and took less than one day.  The Plaintiff’s evidence was accepted and non-pecuniary damages of $12,000 were awarded.

The Court went on to award costs despite the modest quantum.  In doing so Mr. Justice Burnyeat provided the following reasons:

[9] I cannot reach the conclusion that the legal or factual complexity of the case, the need for discovery of documents and examination for discovery, and the need for a judgment enforceable outside of British Columbia are applicable reasons why this action was commenced in the Supreme Court of British Columbia rather than in Provincial Court.  However, I am satisfied that the summary trial procedure available in the Supreme Court and the availability of costs makes the Supreme Court a preferable and justified forum for this Action.

[10] I take judicial notice that this case reached the Court for decision much more quickly than if the Action had been commenced in the Provincial Court.  In this regard, I take judicial notice of the absence of a considerable number of judges at the Provincial Court level and the backlog in hearing matters that the failure to appoint more judges has produced.

[11] I also take into account the ability of the Plaintiff to have costs awarded in this Court but not in Small Claims Court.  In that that regard, I adopt the reasoning of Harvey J. in Zale v. Colwell, 2010 BCSC 1040, where he states:

In each of the above three decisions [Spencer v. Popham, supra; Faedo v. Dowell, 2007 BCSC 1985; and Kanani v. Misiurna, 2008 BCSC 1274] the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant, a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel.  (at para. 14)

[12] I also adopt the statement of Humphries J. in Kanani, supra:

… in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled. This reasoning has application here as well. (at para. 8).

[13] I take into account that it may well be economically unrealistic for counsel to be retained for up to three appearances in Small Claims Court where the damages sought are nominal.  This must be contrasted with the institutional defendant and its unlimited resources.  In an action in Supreme Court, counsel for a plaintiff is only required to appear once in Court if an application pursuant to Rule 9‑7 of the Supreme Court Civil Rules is appropriate.  In the case at bar, the application has taken approximately one hour.

[14] In the circumstances, I am satisfied that the Plaintiff should be entitled to his costs throughout on a Party and Party (Scale B) basis.

Section 3 of BC’s Negligence Act reduces a Plaintiff’s entitlement to costs recovery to the same proportion as a Plaintiff’s degree of fault following a collision.   Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing the factors a Court can consider in deviating from this typical result and further finding that pre-trial borrowing is irrelevant to the Court’s analysis.

In last month’s case (Gowler v. Ngo) the Plaintiff was injured in two motor vehicle collisions.  Following a 13 day trial a Jury found the Plaintiff 50% at fault for the first of the collisions.  Damages of $250,000 were assessed and these were cut in half to take the Plaintiff’s degree of fault into consideration.  The Plaintiff’s costs for proceeding to trial were over $100,000.   Neither party beat their pre-trial settlement offer leaving the Court to apply section 3 of the Negligence Act.

Madam Justice Gray found it would be unfair to strip the Plaintiff of 50% of his costs given their magnitude and instead reduced the Plaintiff’s entitlement by 35%.  In doing so the Court provided the following reasons:

[14] The factors to take into account in considering the court’s discretion are discussed in my decision in Moses v. Kim, 2007 BCSC 1820. I will talk about the Court of Appeal decision in a moment, but I will ask that the reasons for judgment, if they are reproduced, will now include paragraph 13 of the Moses v. Kim decision.

[13]   The authorities demonstrate many factors the court has considered in exercising this discretion. Among them are the following:

(a)  the seriousness of the plaintiff’s injuries;

(b)  the difficulties facing the plaintiff in establishing liability;

(c)  the fact that in settlement negotiations the amount offered was substantially below the ultimate amount;

(d)  whether the plaintiff was forced to go to trial to obtain recovery;

(e)  the costs of getting to trial;

(f)  the difficulty and length of the trial;

(g)  whether the costs recovery available to the plaintiff, if costs are apportioned according to liability, will bear any reasonable relationship to the party’s costs in obtaining the results achieved;

(h)  the positions taken by the parties at trial, in particular whether the positions taken were appropriate and reasonable in the circumstances;

(i)  whether the defendants made any settlement offers;

(j)  the ultimate result of the trial; and

(k)  whether the plaintiff achieved substantial success that would be effectively defeated if costs were awarded pursuant to s. 3(1) of the Negligence Act…

[35] In my view, in this case the most important factors are the costs of proving damages for an injury of this type, the fact that there is a very significant claim for disbursements, and the fact that the amount of the award is $125,000 and the costs claimed are about $104,000.

[36] Mr. Mussio asked me to take into account some borrowing that Mr. Gowler did prior to the trial. In my view, that is not a factor I can take into account, nor can I take into account the legal fees, based on the decision of the Court of Appeal in the Moses v. Kim case.

[37] Looking at all the applicable factors, in my view it would be unjust to award the plaintiff only 50 percent of his costs. That is because his award would be so diluted by the need to pay his disbursements that he would not have a sufficient recovery. However, it is not a case where Mr. Gowler’s damages were so significant as in the Moses case.

[38] Looking at the cases and all the applicable factors, in my view, the appropriate award is that the plaintiff should recover 65 percent of his costs.

A developing area in BC relating to personal injury law is the ability of a Plaintiff to recover interest charged on disbursements.  Prosecuting personal injury claims, particularly claims with complex injuries, can be an expensive business.  Disbursements can quickly add up to tens of thousands of dollars.  These expenses are often financed through a line of credit which can accrue significant interest over time.

Although the BC Court of Appeal has yet to weigh in on this subject, it appears the law is shifting to allow interest on disbursements to be recovered in personal injury litigation in this Province.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, allowing such a result.

In today’s case (Chandi v. Atwell) the infant Plaintiff was severely injured in a 2004 collision.  The case settled for $900,000 plus costs and disbursements.  Following settlement ICBC took issue with many of the Plaintiff’s disbursements.  The parties had these assessed by the BC Supreme Court.  While some reductions were made the Court ultimately upheld many of the Plaintiff’s disbursements including a medico-legal assessment which alone cost almost $17,000.

The Plaintiff incurred over $25,000 in disbursement interest.  In allowing this expense the Court provided a useful summary of the law at paragraph 71 of the reasons for judgement with District Registrar Cameron coming to the following conclusion:

[73]         While the current state of the law mandates that I make some allowance for the interest expense in my view I am not bound to award full indemnity for the amount of interest charged to the Plaintiff. I am not bound by Basi v. Atwal and with the greatest of respect I decline to follow it.

[74]         In the law of costs it is still only in the relatively rare case that full indemnity is provided to the successful party. Only disbursements that are necessary and reasonable in amount are recoverable.

[75]         In my view the Registrar should endeavour, wherever possible, in assessing the amount to allow for a specific type of disbursement to strive for consistency unless the application of that principle would work a real hardship or unfairness in a particular case. To attain that consistency I will make an allowance for disbursement interest based upon Registrar’s rates with the calculation of the total amount to be akin to the calculation of interest payable on special damages pursuant to the relevant provisions of Court Order Interest Act.

For more on this topic you can click here to accessed my archived ‘interest on disbursement’ posts.  This case is also worth reviewing for the Court’s comments at paragraphs 49-53 on ‘transcription fees‘ finding that this is a disbursement of convenience, not necessity, and therefore not allowable.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, with the “curious result” of costs recovery at over double the amount of assessed damages.

In last week’s case (Kargbo v. Chand) the Plaintiff was involved in a motor vehicle collision.  ICBC disputed both fault and injury.  At trial the Plaintiff’s claim was accepted and modest damages of $4,000 were awarded.  The Plaintiff sought her costs.  ICBC opposed arguing the Plaintiff did not have sufficient reason to sue in Supreme Court.

Earlier this year the BC Court of Appeal made it clear that more than the value of an ICBC Claim can be considered in deciding whether there is sufficient reason to sue in the Supreme Court.  Mr. Justice Williams went on to canvass factors other than value and concluded that the Plaintiff was entitled to $9,500 in costs under Rule 15-1(15).  The Court provided the following reasons:

[9] The problem ultimately reduces to this: If the Court determines that the plaintiff had sufficient reason for commencing or proceeding in the Supreme Court, she should be entitled to recover costs in accordance with Rule 15-1(15). If the Court finds that there was not sufficient reason for bringing the proceeding in this Court, then she is not entitled to recover her costs.

[10] In Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal clarified that the issue has to be analyzed as at the point in time that the plaintiff initiated the action; there is no ongoing obligation to assess the quantum of claim.

[11] I have been provided with a number of decisions where judges of this Court have assessed the circumstances of cases to decide whether or not an order for costs is warranted. Obviously, the plaintiff bears the onus of establishing that there was sufficient reason for filing in the Supreme Court. It is not simply a matter of assessing the anticipated value of the claim. A number of factors have been identified in the cases as being relevant to the issue. These include the following (the list is not intended to be exhaustive):

1.         the legal or factual complexity of the case;

2.         the need for discovery of documents and examinations for discovery;

3.         the need for a judgment enforceable outside of British Columbia;

4.         a bona fide preference for a jury trial;

5.         access to the summary trial procedure available in Supreme Court; and

6.         the need for the plaintiff to have legal counsel, in light of the defendant’s denial of liability, dispute as to causation, injury or loss and allegations of contributory negligence, pre-existing conditions, previous causes and a failure to mitigate.

[12] In the present case, liability was denied and in the circumstances could reasonably have been expected to represent a challenge to prove. As well, the issue of damages had the real potential of being a problem. The plaintiff had a history of prior accidents and had been hospitalized shortly after the accident in question for matters not related to the accident. She was also injured in another more serious accident some several months after the accident at bar. It was the sort of case that a self-represented plaintiff would find daunting no doubt.

[13] Taking those considerations into account, it is my view that this plaintiff had sufficient reason for bringing her proceeding in the Supreme Court.

[14] As a parenthetical observation, it is true that a party such as this plaintiff could elect to pursue the claim in the Provincial Court with legal counsel, although the prospect of incurring the expense to do so without any right to recover court costs is a legitimate factor to consider. As well, where the plaintiff elects to bring suit in the Supreme Court, she runs the real risk of an adverse costs outcome if the action is unsuccessful.

[15] In the circumstances, it is my view that the plaintiff should be entitled to costs in accordance with the Rules of Court. I recognize that might appear to produce a curious result in that the award of costs is substantially greater than the damages that she recovered. However, if the matter is considered fairly and objectively and the relevant rule applied, that result follows.

[16] There is no question that the policy which underpins Rule 14-1(1) is to encourage parties with claims of modest value to bring their action in the Provincial Court, and to provide for a penalty against one who does not. That is consistent with the concept of proportionality which is a foundational consideration of the Court’s Rules.

[17] The clear default position will be that, with respect to claims where the award is less than $25,000, the plaintiff will not be entitled to an award of costs. Nevertheless, there will be situations where there is sufficient reason to bring the action in the Supreme Court. It will be for the Court to examine the circumstances of each particular case to determine whether or not there is sufficient reason.

For more cases addressing sufficient reasons to sue in Supreme Court you can click here to access my archived posts on this topic.

(Update February 9, 2012 - the below decision is under appeal with the BCCA granting leave to appeal on February 9, 2012)

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that Third Party’s are not immune from BC’s ‘loser pays’ system.

This week’s case (Danicek v. Alexander Holburn Beaudin & Lang) involved a highly publicized lawsuit where the Plaintiff lawyer was awarded damages after being injured in a dance floor incident.  My previous posts can be accessed here for the full background.  This week the Court finalized some of the costs consequences following the trial.  In doing so Mr. Justice Kelleher provided the following comments adopting an Alberta judgement confirming that there is no reason why Third Party’s can’t be exposed to costs consequences following trial:

[15] The first issue is whether Lombard should be held liable to the plaintiff Ms. Danicek for the costs of the trial.

[16] There is no serious dispute that although Lombard was not a defendant but a third party, it may be liable in costs. It was put this way by Egbert J. in Sunburst Coaches Ltd v. Romanchuck;Ocean Accident and Guarantee Corporation Limited (Third Party) (1953) 9 W.W.R. (N.S.) 385 (Alta. S.C.) at 392, para. 19:

The third party, on its own application became a party to and actively defended the action, and by so doing made itself subject to the jurisdiction of this court as to costs. I see no reason why the plaintiff should not have judgment against the third party as well as against the defendants, for its costs computed in the manner aforesaid.

[17] Because of the other settlements in this action Lombard found itself the only party left to defend the claim.  Although Mr. Poole had admitted liability, Lombard contested both the liability of Mr. Poole and damages.  It was entitled to do so but faces the possibility of an award of costs either in its favour or against it, depending on the outcome of the lawsuit…

[23] The purpose of an award of costs is to indemnify successful litigants; deter frivolous proceedings and defences; encourage parties to deliver reasonable offers to settle; and discourage improper or unnecessary steps in litigation:  see Skidmore v. Blackmore (1995), 122 D.L.R (4th) 330, at para. 37.

[24] My conclusion is that the plaintiff is entitled to her costs in respect to Phase 1 of the trial against Lombard.  It was Lombard that decided to contest liability and quantum.  Ms. Danicek’s position was upheld on each of these issues.  Quantum far exceeded the settlements she had reached with Mr. Poole, Alexander Holburn and the other third parties.

[25] Lombard was not, ultimately, liable for the judgment against Mr. Poole.  This was because of the conclusion reached in the second phase of the trial that the Lombard policy did not provide coverage.  But that was not the issue in Phase 1 of the trial.  (There was evidence relevant to the coverage issue adduced at trial.  That is because witnesses were called at the first phase who had evidence to give in respect to the second phase.)  The issues decided in Phase 1 were liability of Mr. Poole and quantum of damages.

[26] In my view having in mind the principle of an award of costs, costs should be awarded against Lombard in respect of Phase 1 from the time that it filed a statement of defence.  The plaintiff was substantially successful on the issues involving Lombard in that part of the trial.

Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, addressing whether the Rule 15 Costs ‘cap‘ can apply to non-Rule 15 lawsuits that proceed to trial but result in judgement below $100,000.  In short the Court ruled that the cap should apply in these circumstances.

In last week’s case (Affleck v. Palmer) the Plaintiff sued the Defendants for damages.  The claim was not filed under the fast track provisions of Rule 15.  The case proceeded by way of summary trial under Rule 9-7 and was successful.  The judgement is unclear of the damages awarded but they were apparently over $25,000 under $100,000.  The summary trial lasted one day.

The Plaintiff brought an application for lump sum costs of $8,000 under Rule 15-1(15).  Mr. Justice Brown agreed that this was appropriate even though the lawsuit was not filed under the provisions of Rule 15.  In reaching this conclusion the Court provided the following reasons:

[4] Rule 14-1(1)(f) states that costs payable under the Civil Rules or by court order must be assessed as party and party costs under Appendix B, unless:

…

(f)         subject to subrule (10) of this rule,

(i)         the only relief granted in the action is one or more of money, real property, a builder’s lien and personal property and the plaintiff recovers a judgment in which the total value of the relief granted is $100,000 or less, exclusive of interest and costs, or

(ii)        the trial of the action was completed within 3 days or less,

in which event, Rule 15-1(15) to (17) applies to the action unless the court orders otherwise.

[5] There are other exceptions under Rule 14-1(1), but subsection (f) is the significant one in this case. Rule 14-1(10), which pertains to plaintiffs who recover in this Court a sum within the jurisdiction of the Provincial Court, does not apply in this case.

[6] Rule 15-1(15)(a) states a party in a fast track action is entitled to costs of $8,000, exclusive of disbursements, if the time spent on the hearing is one day or less, unless the court orders otherwise or the parties consent.

[7] I agree with the plaintiffs that although they had proceeded by way of summary trial and did not file a notice of fast track action, the wording of Rule15-1(1) governs and the action qualifies as a fast track action under Rule 15-1(1)(a) or 15-1(1)(b).

[8] As the plaintiffs point out, because they claimed various forms of relief under the Business Corporations Act, S.B.C. 2002, c. 57 [Business Corporations Act], it is arguable they were claiming more than monetary relief. Even so, the action still completed under Rule 9-7 in less than one day.

[9] The plaintiffs submit it would be appropriate for me to order $8,000 in costs. This represents the amount payable in a fast track action; and, despite the fact that the plaintiffs proceeded by way of summary trial under Rule 9-7, the plaintiffs submit an order for $8,000 in costs is appropriate in this case. I find the $8,000 set out in Rule 15-1(15)(a) is appropriate in this case.

This case is also a useful precedent because as set out in paragraph 8 the Court suggests that Rule 15 applies regardless of quantum provided the trial takes three days or less.

This case is worth reading in conjunction with the recent case of Johnson v. Axten which held that the Rule 15 costs cap can apply to pre-trial settlements of under $100,000 even if the case was not prosecuted under the fast track rule.

If a BC Supreme Court Judgement is silent with respect to costs following trial the default Loser Pays system kicks in as a result of Rule 14-1(9).  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this default position.

In last week’s case (Habib v. Jack) the Plaintiff’s personal injury lawsuit was dismissed following trial. The trial Judge’s reasons did not set out any costs order.  The Defendant sought their costs but the Plaintiff opposed this arguing that silence on costs in the trial judgement makes the issue ‘res judicata’.  Madam Justice Ross disagreed and provided the following short but useful reasons:

[9] The plaintiff’s res judicata argument has previously been considered and rejected by this court. In Graham v. Great West Life et al., 2004 BCSC 1544, Sinclair Prowse J. considered the argument that silence in earlier reasons for judgment regarding costs is tantamount to an order that there will not be an order for costs. After reviewing the authorities she found that if reasons are silent, by operation of Rule 57(9), there is a presumption that costs will follow the event unless either party objects to the order being framed in that manner, in which case an application for costs should be made to the court. The present Rule 14-1(9) contains the same presumption.

As previously discussed, BC has a true ‘loser pays‘ system which generally requires the loser of a lawsuit to pay the winners costs.  If a Defendant makes a formal settlement offer and defeats the Plaintiff’s lawsuit the Court has the discretion to award double costs.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, refusing to make such an order in circumstances where the formal offer was little more than a walk-away offer.

In last week’s case (Habib v. Jack) the Plaintiff was injured while riding as a passenger in the Defendant’s bus.  The parties agreed on the value of the Plaintiff’s injuries but disagreed on the issue of fault.  Prior to trial ICBC made a formal settlement offer of $1,000.  The Plaintiff rejected this offer, proceeded to trial, and had her claim dismissed.

ICBC was awarded costs and asked the Court to award double costs pursuant to Rule 9-1(5).  Madam Justice Ross refused to do so noting that the offer was ‘nominal’ and that it was not unreasonable for the Plaintiff to have her day in court.  The court provided the following helpful reasons:

[15] The defendants submit that having regard to the factors enumerated in the Rule, the court ought to award double costs. Counsel submits that the offer was not nominal; it gave the plaintiff modest recovery and represented a willingness to compromise that the Rule is meant to foster. The offer was made at a time when the discoveries of both parties were complete and the evidence was known. The plaintiff’s position is that this was a nuisance offer and it cannot be said, without applying hindsight, that it ought to have been accepted.

[16] At the time the offer was made, it was clear that the plaintiff had suffered an injury. There was a dispute with respect to liability. Mr. Jack had limited recollection. The only two witnesses were Ms. Habib and Mr. Jack.

[17] In my view the offer was nominal given Ms. Habib’s injury. I agree with the observations of Burnyeat J. in Martin v Lavigne and Neufeld (Costs), 2010 BCSC 1610 at para. 13, that there are situations in which a nominal offer should have been accepted. However, in my view this is not such a case. It cannot be said that it was clear that the action had little chance of succeeding on the merits. Rather, there was a significant risk that the case would be lost on liability. This risk materialized and the action was lost at trial; however, in the circumstances it was not unreasonable for the plaintiff to reject the offer and proceed to trial.

[18] On balance I have concluded that this is not a case to make an order for double costs as sought by the defendants based upon the offer to settle. In the result, the defendants will have their costs.

Earlier this year the BC Supreme Court released reasons for judgement finding that when a Defendant succeeds in a lawsuit and is awarded costs the order is for their benefit not their insurer.  In short the Court held that ICBC has no subrogated right to costs awards under section 84(1) of the Insurance (Vehicle) Act.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking an opposite view of this issue.

In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus.  She sued the bus driver and bus company but had her claim dismissed at trial.  The Defendant was awarded costs with Madam Justice Ross giving ICBC the benefit of this costs award.  The Court provided the following brief reasons:

In the result, the defendants will have their costs. Under s. 84(1) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, the Insurance Corporation of British Columbia (“ICBC”) is subrogated to its insured and is entitled to recover the costs to which the insured would be entitled. Accordingly, ICBC is entitled to recover the costs awarded to the defendants.

Given the contradictory recent court findings on this issue I suspect the BC Court of Appeal will be asked to weigh in on the topic of insurers subrogated rights to costs following the successful defence of a lawsuit.

As previously discussed, one of the best changes in the New Rules of Court is the ability for trial judges to have discretion in assessing costs consequences where one party bests their formal settlement offer at trial.

Generally where a Plaintiff fails to beat a Defence formal settlement offer they can be punished with a significant costs award.  Fortunately Rule 9-1 does not force a Court to this result and instead leaves some discretion in the process.   This discretion was demonstrated in reasons for judgement released last week by the BC Supreme Court, New Westminster Registry.

In last week’s case (Gatzke v, Sidhu) ICBC, on the Defendant’s behalf, made a formal settlement offer of $50,000.  The Plaintiff proceeded to trial and after a split finding of liability was assessed damages at “an amount to someting less than $10,000“.

ICBC brought a motion to be awarded post offer costs.  Mr. Justice Saunders refused to make this order instead simply ordering that the Plaintiff be deprived of her post offer costs and that the Plaintiff pay the disbursements associated with bringing the Defendant’s IME doctor to trial.  In reaching this result the Court provided the following reasons:

[14] …. Ordinarily, where a plaintiff obtains judgment for less than the amount offered in settlement, the legislative purpose of the Rule would be fulfilled by awarding the defendant its costs from the date the offer was made.  However, where there is a very significant gap between the judgment amount and the offer, it may be the case that a defendant is in a better position for having gone to trial, even taking its counsel’s fees into account.  This appears to have quite possibly been the case in the present circumstances.  The damages assessed, net of the plaintiff’s contributory negligence, are a small fraction of the offer.

[15] Defendants should not be discouraged from making generous settlement offers.  But where the end result is dramatically different than the offer resulting in a net savings to the defendant, a defendant found to be partially at fault can reasonably expect to bear some of the cost of obtaining that result.

[16] The plaintiff apparently has very limited financial means.  This factor, however, will be given the most weight where it is the subject accident, or other issue between the parties, which is responsible for the plaintiff’s circumstances.  That is not the case here.

[17] The defendants, on the other hand, were presumably being defended by the Insurance Corporation of British Columbia.  An insured defendant’s greater financial ability to defend is a factor which was described by the B.C. Court of Appeal in Smith v. Tedford, 2010 BCCA 302, as being a matter “of no small importance to considering whether and to what extend the financial circumstances of the parties, relative to each other, bear on an award of costs”.

[18] This appears to have been a case where both parties undertook a course of action based on an overestimation of the risk to the defendants.  There is no compelling case, in the circumstances, for awarding the defendants the entirety of their post-offer costs.  Given the plaintiff’s financial circumstances and the very modest damages, the purpose of the Rule will be met by awarding the plaintiff 30% of her costs to the date of the offer, and awarding the defendants only the disbursements incurred in association with the attendance at trial of their expert witness, Dr. Sovio.  Dr. Sovio’s attendance at trial was only required for cross-examination at the plaintiff’s request, and it is appropriate that this cost be borne by the plaintiff.  That amount is to be set off against the plaintiff’s award of damages.