More on Formal Settlement Offers – Relevance of Insurance and a Novel Use of Rule 37B


In my continued efforts to write about the development of Rule 37B (the rule that deals with costs consequences after a party beats a formal settlement offer at trial) two cases were released this week further interpreting this rule.
The first case (Ostiguy v. Hui) the Plaintiff was injured in a 2003 BC car crash.  She ultimately represented herself.  In the course of the lawsuit ICBC made a formal settlement offer under the old Rule 37 for $30,000.  The Plaintiff did not accept this offer and went to trial.  The Jury awarded the Plaintiff $10,000.   The Defendants brought a motion for costs.
After addressing a technical issue about the offer’s general compliance with the old Rule 37 Mr. Justice Williams decided that the offer was capable of triggering costs consequences under the new Rule 37B.  The Court went on to award the Defendant 60% of their costs from the time that liability was admitted onward.  In reaching this decision the Court held that whether the Defendant was insured with ICBC was not to be considered (an issue the BC Supreme Court cannot agree on and needs to be addressed by the Court of Appeal).
The Court made the following notable comments:
[68] I have no knowledge as to the circumstances of the defendants; I will proceed on the basis that they are ordinary people of ordinary means. I should note parenthetically that, although they were represented by an insurer, it is their circumstances and not those of the insurer which are to be considered…

[71] In this case, the costs which the plaintiff is liable to pay are substantial. That is attributable in significant part to the fact that this litigation dragged on considerably. The plaintiff hired and subsequently discharged two different lawyers before proceeding to act for herself. There were a number of delays. Costs have mounted.

[72] The law is clear that sympathy is not a basis to determine the outcome of matters such as this. Nevertheless, it is quite disconcerting to see the plaintiff’s award of damages for her injury completely obliterated and overshadowed by a costs obligation, and for the consequences in fact to go further, to leave the plaintiff with a huge bill to pay as well.

[73] At the same time, the Court must be cautious that the sound and basic principles that underlie the costs regime are not simply disregarded because the plaintiff chose to represent herself and chose to proceed as she did.

[74] In the final result, the matter requires a balancing of a number of considerations and a significant application of judgment to try and fashion an outcome that is fair in the circumstances. Approaching the task in that fashion, I have decided as follows:

(a)      The effective date of the Offer will be July 14, 2008, when the defendants advised the plaintiff that liability was being admitted.

(b)      Up to July 14, 2008, the plaintiff is entitled to recover from the defendants her costs and disbursements.

(c)      For the time period following July 14, 2008, the defendants are entitled to recover from the plaintiff their disbursements and 60% of their costs.

For my readers not familiar with the potential extent of cost consequences I should point out that on these findings there is a good chance that the Plaintiff, despite being awarded $10,000 by the Jury, would end up owing ICBC money.  When preparing for trial it is imperative that parties consider the potential consequences of formal settlement offers.

________________________________________________________________________________________________

The second case released this week was interesting because the Defendant made what appears to be a novel use of Rule 37B.  Usually parties restrict formal settlement offers to the issues to be addressed at trial.  In this week’s case (Moro v. El Mantari) the Defendant used Rule 37B in a Chambers application.

The parties could not agree on a lot of issues in the lawsuit.  Prior to trial the Parties brought cross motions to be decided in Chambers.  Prior to this pre-trial hearing the Defendant made a formal settlement offer under Rule 37B asking that the Plaintiff consent to various aspects of their motion.

The Defendant was largely successful in Chambers.  The Court was asked to award the Defendant double costs for Chambers because of the formal offer.  In the first case that I’m aware of using Rule 37B in this fashion Mr. Justice Chamberlist agreed that it was a permitted use of the Rule.  Specifically the Court held as follows:

[18] The defendant submits that it should be entitled to double costs on the basis of its offer to settle to the plaintiff made on June 26, 2009.  At that time the defendant asked the plaintiff to consent to items 1, 4, 6, 7, 8, and 10 of her notice of motion.

[19] The fact is that R. 37 has since 2008 been amended by deleting the subrules that an offer to settle did not apply to interlocutory proceedings.  The overriding fact is that there must be substantial success.  ..

22] Thus R. 37B(4) permits the court to consider an offer to settle when exercising the court’s discretion in relation to costs.

[23] As a result, the fact that the defendant has failed to meet the terms of the offer to settle will no longer necessarily mean that she would be deprived of her double costs.  In various decisions of this court it would appear that an issue which has been discussed in many cases is whether the offer to settle is one that ought reasonably to have been accepted (R. 37B(6)(a))….

[26] The enactment of R. 37B so that it now applies to interlocutory applications as well as trial, demonstrates the purpose of the new rule is to allow an offer to settle to be made, and if I were to follow the plaintiff’s position it would completely ignore the important deterrent function of the rule…

[32] In this case the offer to settle was made on June 26, 2009, and I find that the defendant was substantially successful.  The defendant shall have her costs of her attendance before me on August 27 and 28, 2009, as calculated in accordance with R. 37B, namely double costs.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as these retain their value as precedents.

Cost Consequences, costs, formal settlement offers, icbc claims and formal settlement offers, icbc settlements, Moro v. El Mentari, Mr. Justice Chamberlist, Mr. Justice Williams, Ostiguy v. Hui, Rule 37B

Comments (44)

  • I just want to say I’m all new to blogging and site-building and actually loved you’re web site. Very likely I’m likely to bookmark your blog . You certainly come with incredible article content. With thanks for revealing your website page.

  • I like what you guys are up too. Such smart work and reporting! Carry on the excellent works guys I have incorporated you guys to my blogroll. I think it’ll improve the value of my website 🙂

  • Do you mind if I quote a couple of your posts as long as I provide credit and sources back to your blog? My blog site is in the very same niche as yours and my users would genuinely benefit from a lot of the information you provide here. Please let me know if this okay with you. Thanks a lot!

  • Thanks for your publication on the travel industry. I would also like contribute that if you’re a senior taking into account traveling, it really is absolutely crucial that you buy travel insurance for senior citizens. When traveling, older persons are at biggest risk of having a healthcare emergency. Buying the right insurance cover package for your age group can safeguard your health and provide you with peace of mind.

  • I’m not sure why but this site is loading extremely slow for me. Is anyone else having this problem or is it a problem on my end? I’ll check back later and see if the problem still exists.

  • obviously like your web-site however you need to take a look at the spelling on several of your posts. Several of them are rife with spelling problems and I to find it very troublesome to inform the reality then again I’ll certainly come again again.

  • Greetings I am so happy I found your site, I really found you by error, while I was looking on Askjeeve for something else, Regardless I am here now and would just like to say thanks a lot for a fantastic post and a all round enjoyable blog (I also love the theme/design), I don’t have time to read through it all at the minute but I have book-marked it and also added your RSS feeds, so when I have time I will be back to read a great deal more, Please do keep up the fantastic job.

  • Hey There. I found your blog using msn. This is an extremely well written article. I’ll make sure to bookmark it and return to read more of your useful information. Thanks for the post. I’ll definitely return.

  • I must express some thanks to you for bailing me out of this type of matter. Right after researching throughout the the net and meeting ways that were not productive, I assumed my entire life was gone. Existing minus the answers to the problems you have resolved by means of your main article content is a crucial case, as well as the kind which might have adversely damaged my entire career if I hadn’t come across the blog. Your competence and kindness in taking care of a lot of things was very useful. I don’t know what I would have done if I had not encountered such a step like this. It’s possible to at this time relish my future. Thanks a lot very much for the impressive and effective help. I will not hesitate to propose your web sites to anybody who should have guide on this subject.

  • The subsequent time I learn a blog, I hope that it doesnt disappoint me as a lot as this one. I mean, I do know it was my choice to learn, but I truly thought youd have something interesting to say. All I hear is a bunch of whining about something that you might fix if you werent too busy in search of attention.

  • I believe this is one of the so much vital info for me. And i’m happy reading your article. But want to commentary on some basic issues, The site style is perfect, the articles is really nice : D. Good activity, cheers

  • Woah! I’m really loving the template/theme of this website. It’s simple, yet effective. A lot of times it’s challenging to get that “perfect balance” between usability and visual appeal. I must say you’ve done a amazing job with this. Additionally, the blog loads extremely quick for me on Firefox. Excellent Blog!

  • I do trust all of the concepts you have offered on your post. They are really convincing and will certainly work. Still, the posts are very short for novices. May just you please lengthen them a bit from next time? Thanks for the post.

  • My partner and I stumbled over here from a different page and thought I may as well check things out. I like what I see so now i am following you. Look forward to exploring your web page for a second time.

  • Hey, I think your site might be having browser compatibility issues. When I look at your website in Chrome, it looks fine but when opening in Internet Explorer, it has some overlapping. I just wanted to give you a quick heads up! Other then that, excellent blog!

  • Youre so cool! I dont suppose Ive read something like this before. So good to seek out someone with some unique thoughts on this subject. realy thanks for beginning this up. this website is one thing that is wanted on the net, somebody with slightly originality. useful job for bringing one thing new to the web!

  • Hi! I just wanted to ask if you ever have any issues with hackers? My last blog (wordpress) was hacked and I ended up losing many months of hard work due to no backup. Do you have any methods to prevent hackers?

  • Just desire to say your article is as astonishing. The clearness in your post is just cool and i can assume you’re an expert on this subject. Well with your permission let me to grab your feed to keep up to date with forthcoming post. Thanks a million and please carry on the enjoyable work.

  • Hi there! Do you know if they make any plugins to safeguard against hackers? I’m kinda paranoid about losing everything I’ve worked hard on. Any recommendations?

  • Hey there! I’ve been reading your blog for some time now and finally got the courage to go ahead and give you a shout out from Humble Texas! Just wanted to tell you keep up the great work!

  • Great article. It is quite unfortunate that over the last decade, the travel industry has had to fight terrorism, SARS, tsunamis, bird flu virus, swine flu, plus the first ever real global tough economy. Through it the industry has really proven to be sturdy, resilient as well as dynamic, obtaining new tips on how to deal with adversity. There are constantly fresh problems and possibilities to which the sector must once more adapt and respond.

  • I’ve been surfing on-line more than three hours nowadays, but I never found any interesting article like yours. It’s beautiful price sufficient for me. Personally, if all webmasters and bloggers made just right content material as you probably did, the net might be a lot more useful than ever before. “Dignity is not negotiable. Dignity is the honor of the family.” by Vartan Gregorian.

  • I haven’t checked in here for some time since I thought it was getting boring, but the last few posts are great quality so I guess I’ll add you back to my daily bloglist. You deserve it my friend 🙂

  • Hi, i feel that i noticed you visited my web site so i came to “go back the want”.I am trying to find issues to improve my site!I assume its good enough to make use of some of your concepts!!

  • obviously like your web site but you have to check the spelling on quite a few of your posts. Several of them are rife with spelling issues and I in finding it very bothersome to inform the truth nevertheless I’ll definitely come again again.

  • That is the precise weblog for anyone who wants to search out out about this topic. You notice so much its virtually exhausting to argue with you (not that I actually would need…HaHa). You positively put a brand new spin on a topic thats been written about for years. Nice stuff, just nice!

  • I’m really inspired together with your writing abilities as well as with the structure to your blog. Is this a paid subject or did you customize it yourself? Either way keep up the excellent quality writing, it is rare to see a nice weblog like this one these days..

  • I conceive this site holds some really excellent info for everyone :D. “Experience is not what happens to you it’s what you do with what happens to you.” by Aldous Huxley.

  • Good – I should certainly pronounce, impressed with your web site. I had no trouble navigating through all tabs as well as related information ended up being truly simple to do to access. I recently found what I hoped for before you know it at all. Quite unusual. Is likely to appreciate it for those who add forums or something, web site theme . a tones way for your client to communicate. Excellent task.

  • Thank you for any other fantastic post. Where else could anybody get that kind of info in such a perfect means of writing? I’ve a presentation next week, and I am on the look for such information.

  • There are some fascinating time limits in this article however I don’t know if I see all of them center to heart. There may be some validity but I’ll take maintain opinion until I look into it further. Good article , thanks and we would like more! Added to FeedBurner as effectively

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer