Formal Offer on Eve of Trial Not "Too Late" To Trigger Costs Consequences

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing the effects of a formal settlement offer made on the eve of trial.
In last week’s case (J.D. v. Chandra) the Plaintiff was injured in two motor vehicle collisions.  At trial she was awarded just over $500,000 in damages.  On the last business day before trial the Plaintiff made a formal offer to settle for $200,000.  The Plaintiff sought double costs for the trial arguing the offer should have been accepted.  The Defendant argued the offer was made too late in the process to trigger such consequences.  In rejecting this position Madam Justice Griffin provided the following reasons:
[16]         One of the defendants’ arguments is that the offer was delivered too close to the start of trial.  The offer was delivered at the end of the day on Friday, January 31, 2014, and counsel for the defendants submits that he did not see it until the next day, Saturday, February 1, 2014.  The trial was set to and did commence the following Monday, February 3, 2014.
[17]         The shortness of time to consider the offer does give me pause.  However, counsel for the plaintiff has pointed out case authorities where ICBC has taken the position that offers it has delivered to plaintiffs on the eve of trial ought to be considered by the court in depriving the plaintiff of costs.  These arguments have been accepted in some cases, for example, see Bevacqua v. Yaworski, 2013 BCSC 29.
[18]         As noted by Mr. Justice Voith in Brewster v. Li, 2014 BCSC 463, there is currently no requirement in the Rules that an offer be made within a specific time from the start of trial.  The question of what is a reasonable time to consider an offer is “largely driven and governed by context” (para. 26).
[19]         Here, the context was that counsel for the defendants had delivered an offer to settle on January 21, 2014; the parties had attended a Judicial Settlement Conference on January 29, 2014, and the defendants had delivered an additional offer to settle on January 30, 2014.  This context suggests that the defendants were in a position where they were well able to analyze the risks of going to trial and the relative merits of each side’s position.
[20]         There was nothing complicated about the offers to settle which required lengthy analysis.  The parties were just exchanging dollar amounts.  There was no revealing new analysis of the issues or last minute disclosure of material information.
[21]         The plaintiff’s form of offer to settle adopted a form similar to that of the defendants.
[22]         The defendants were represented by experienced counsel for ICBC.  I find that the defendants were in a good position to be able to analyze and respond to the offer within hours, if not minutes.  I find that the defendants had sufficient time to assess the reasonableness of the plaintiff’s offer to settle.
 

bc injury law, formal settlement offers, J.D. v. Chandra, Madam Justice Griffin, timing of formal settlement offers

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ERIK
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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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