No Costs for ICBC Insured Defendant After Beating Formal Settlement Offer in Liability Trial

Three years ago the BC Court of Appeal clarified that a Defendant’s insured status can be taken into account when considering costs consequences in a trial where a formal settlement offer was in place.  Reasons for judgement were released this week by the BC Supreme Court heavily relying on this factor in denying a Defendant post offer costs.
In this week’s case (Currie v. Taylor) the Plaintiff was involved in a 2008 collision.  Prior to trial ICBC offered to settle the issue of liability with the Defendant shouldering 41% of the blame.  The plaintiff rejected this offer and proceeded to trial where a less favorable split of 75/25 was obtained.
The Defendant sought post offer costs.  Mr. Justice Armstrong did strip the Plaintiff of trial costs but did not award these to the Defendant either.  In reaching this conclusion the Court provided the following comments about the significance of the Defendant’s insured status:
[65]         The defendants accept that the plaintiff is financially disadvantaged and that they are represented by an insurer. The defendants’ bill of costs has been presented in the sum of $30,000.32 whereas the plaintiff has disclosed an expenditure of disbursements exceeding $56,000. The plaintiff has not provided a draft bill of costs and I accept that the majority of those disbursements may relate to the issue of quantum. There is simply insufficient evidence on this point to influence the decision.
[66]         However, I am guided by the comments of Sewell J. Wong-Lai where he said:
[52]      I have also given consideration to the relative financial circumstances of the parties. The plaintiff has very limited means. The defendants are covered by insurance and in a very real sense it is the defendants’ insurer who is at risk in this action. I am entitled to take this factor into consideration in exercising my discretion: see Smith v. Tedford, 2010 BCCA 302, 7 B.C.L.R. (5th) 246. Given these circumstances, it is obvious that the relative financial consequences of depriving the plaintiff of her costs are much greater to the plaintiff than to the defendants.
[67]         I accept that there is a significant disparity between the financial resources of the parties and that the plaintiff has very limited means whereas the defendants are supported by an insurer and are at little risk in this action.
[68]         I will not order the plaintiff to pay the defendants’ costs after the delivery of their offer to settle. I have accepted the plaintiff’s arguments: there was a reasonable explanation for the plaintiff’s failure to accept the offer, the magnitude of the plaintiff’s claim is substantial, and there is a substantial discrepancy in the resources of the parties.
[69]         Accordingly, the plaintiff will recover 25% of his costs at Scale B until the date of trial. The defendants will not recover costs.
 

bc injury law, Mr. Justice Armstrong, Rule 9 Rule 9-1, Rule 9-1(6), Rule 9-1(6)(c)

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ERIK
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Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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