Double Costs Ordered for Taking "Extremely Weak" Case to Trial

As recently discussed, when a party is on the losing end of a lawsuit in the BC Supreme Court they usually have to pay the winning sides costs.  If the successful party beat a pre-trial formal settlement offer the Court has the discretion of awarding double costs.  Reasons for judgement were released this week considering an application for double costs where a very modest formal offer was made prior to trial.
In today’s case (Brooks v. Gilchirst) the Plaintiff was involved in two motor vehicle incidents.  She sued for damages and both claims were heard at the same time.  ICBC disputed the allegation that a collision took place in the first incident.  Prior to trial ICBC made a $1 formal settlement offer.  The Plaintiff rejected this offer and went to trial.  Mr. Justice Sigurdson dismissed the claim finding that “no collision” took place.
ICBC applied for double costs.  The Plaintiff opposed arguing that the nominal offer should not trigger increased costs.  Mr. Justice Sidgurson agreed that while this was typically the case, in circumstances where an ‘extremely weak‘ case proceeds to trial double costs could be awarded in the face of a formal settlement offer.   In reaching this result the Court provided the following reasons:

[16]         In terms of the relationship between the terms of settlement offered and the final judgment of the court, the offer was better than the result, but the offer was only for the sum of $1 plus disbursements.  Ordinarily I would think that a nominal offer of one dollar may not attract orders for double costs but I know that in some cases even nominal offers may attract orders of double costs.  See for example MacKinlay v. MacKinlay Estate, 2008 BCSC 1570; Ludwig v. Bos, 2010 BCSC 695.

[17]         This is a case where there had been expenditures on medical and expert reports.  I think that where it becomes clear that liability will be extremely difficult to establish a nominal offer that has the effect of allowing the plaintiff to recover disbursements and avoid liability for the other party’s disbursements may nevertheless be a substantial offer.

[18]         In considering whether the offer ought reasonably to have been accepted, I think it was quite clear that the plaintiff’s original theory that she had been sideswiped as a result of the collision involving the other two adjacent cars was not maintainable once each side had filed their expert reports.  This was not merely a case where the plaintiff had a claim that was difficult to prove at trial; this was a unique case where on the evidence available to her before trial the plaintiff should have realized that she did not have a realistic position on liability…

[23]         In the circumstances, I think that the ICBC defendants should be awarded costs with respect to the main action.  I have estimated the main action consumed 90% of the time at trial.  The defendants were clearly successful and, in my view, it is not an appropriate order for each side to bear its own costs.

[24]         In terms of whether I should award double costs, I think that, in exercising my discretion, the offer reasonably ought to have been accepted in the days prior to trial.  Although the offer was modest, the circumstances at that time were clear that her case was extremely weak, she would have avoided liability for disbursements, and in fact recovered the disbursements she had incurred.

[25]         I award double costs for the period after two days prior to trial.