No Costs Consequences Triggered With Marginal ICBC Victory Over Formal Settlement Offer
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing costs consequences following a trial where ICBC marginally beat their pre-trial settlement offer.
In last week’s case (Wattar v. Lu) the Plaintiff ¬†was injured in a collision in which she and the Defendant were found equally at fault. ¬†After the liability split the Plaintiff’s net damages awarded at trial came to $26,000. ¬†Prior to trial ICBC made a formal offer of $27,500. ¬†ICBC applied for costs consequences to flow from the Plaintiff’s choice to proceed to trial. ¬†Mr. Justice Smith exercised his discretion and refused to award such consequences noting that the unrecovered potion of damages due to the operation of the Negligence Act was punishment enough. ¬†The Court provided the following comments:
¬†¬†¬†¬†¬†¬†¬†¬†¬†This was a three-day trial. In the absence of an offer to settle, the plaintiff would have been entitled to half of her costs, or $5,500, to reflect the division of liability. That would include $2,250, representing half of the costs attributable to three days of trial ($1,500 times three, divided by two). That is the proper amount by which to reduce the plaintiff‚Äôs costs as a consequence of her refusal to accept the settlement offer.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Counsel for the plaintiff argues that the plaintiff should recover all of her disbursements related to damages because she was substantially successful on that issue, but for the reduction resulting from the liability finding. I cannot accept that argument because the offer clearly encompassed a reasonable assessment of the plaintiff‚Äôs damages, discounted for the substantial liability risk. Acceptance of the settlement offer would have made it unnecessary for the plaintiff to prove her damages at trial.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The plaintiff is therefore entitled to costs of $3,250, plus one half of her disbursements to the date of the offer. In view of the modest award and the relatively small gap between the offer and the judgment, I do not consider it appropriate or necessary to further punish the plaintiff with an award of any portion of the defendant‚Äôs costs.