Defendant Awarded Trial Costs for Beating Formal Settlement Offer in ICBC Claim
While Rule 37B is still being shaped in its application one pattern that is relatively well established is that if a Plaintiff is awarded less at trial than ICBC’s formal settlement offer the Plaintiff will likely be deprived of their trial costs and be ordered to pay a portion of the Defendant’s costs. Reasons for judgement were released this week by the BC Supreme Court, Courtenay Registry, demonstrating such a result.
In this week’s case (Berry v. LaBelle) the Plaintiff was injured in a motor vehicle collision. He sued for damages. The month before trial ICBC made a formal settlement offer to resolve the claim for $46,000. This offer was rejected. At trial the Plaintiff was awarded $30,000 in total damages by the BC Supreme Court (you can click here to read my article summarizing the trial judgement).
ICBC brought a motion under Rule 37B to be awarded double costs for all steps taken in the lawsuit after the formal offer was delivered. Madam Justice Baker refused to award double costs, however the Court did deprive the Plaintiff of costs following the formal offer and ordered that the Plaintiff pay the Defendant’s costs from the week after the offer was made through to trial.
The Court recognized that such an order would significantly reduce the amount of damages the Plaintiff would receive. Madam Justice Baker provided the following reasons justifying this result:
 Counsel for the defendant submits, and I agree, that the plaintiff did set his sights very high at trial. In oral submissions at the end of trial, counsel for the plaintiff argued that the appropriate award for non-pecuniary damages was between $150,000 to $200,000; that the plaintiff should receive an award of $45,000 to $60,000 for past loss of income; and that the court should award $400,000 for loss of the capacity to earn income in future. The submissions about income loss were particularly ambitious given that the plaintiff provided no documentary evidence whatsoever about income earned by the plaintiff before or after the accident…
 I consider that the offer made by the defendant was one that ought reasonably to have been accepted, although the plaintiff would, in my view, have reasonably needed some time to consider his position and seek his counsel’s advice.
 As stated earlier, the plaintiff ought to have anticipated significant difficulty in maintaining a loss of income claim without the ability, or willingness, to provide documentary evidence about his earnings before or after the accident.
 By the date of the defendant’s offer, the plaintiff had available to him the medical opinion evidence on which he relied at trial. Given that the medical evidence ruled out neurological injury; plaintiff’s counsel would have had plenty of precedents available to assist in assessing the likely range of quantum of non-pecuniary damages…
 Certainly the effect of the costs order the defendant is seeking would be to deprive the plaintiff of the greater part of the compensation to which I concluded he is entitled by reason of the defendant’s negligence and the plaintiff’s injury…
 In all of the circumstances, I am satisfied that it would be inequitable to make an award of double costs in favour of the defendant. The defendant having elected to proceed under Rule 66, I am satisfied that the defendant’s entitlement to costs should be governed by Rule 66. I award the plaintiff his costs, on Scale B, not to exceed $6,600, up to and including April 21, 2009, plus disbursements incurred to that date. In respect of proceedings after that date, the defendant shall have her costs, but also limited to $6,600 pursuant to Rule 66(29); and her disbursements from and after April 22, 2009. There shall be no order for double costs.
As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. The new rule uses language that is almost identical to Rule 37B which will likely have cases such as this one retain their value as precedents moving forward.