Challenging ICBC Surveillance Disbursements – Evidence of Necessity Required
If parties to a lawsuit can’t agree which disbursements were reasonably incurred they can ask the Court to decide the issue. As recently discussed, it is important for parties to bring appropriate evidence to Court to justify their disbursements. This was further addressed in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC motor vehicle collision. In the course of the lawsuit ICBC made a formal offer to settle the claim for $75,000. About 16 months later the Plaintiff accepted the offer. The formal offer had a declining value reducing its amount by ICBC’s ‘costs and disbursements‘ incurred following the delivery of the offer.
After the offer was accpeted ICBC produced a bill of costs totalling almost $28,000. Once of the biggest disbursements included in this total were the accounts of a private investigator who was retained to conduct video surveillance of the Plaintiff. These accounts totalled almost $20,000.
The Plaintiff argued that ICBC’s disbursements were unreasoble. Eventually the BC Supreme Court was asked to decide the issue. Master Keighley sided largely with the Plaintiff and reduced ICBC’s account to just over $6,000. In doing so the Court provided the following reasons refusing the disbursements related to the private investigator and addressing the need for parties to come to Court with adequate evidence:
 As a general proposition, the party claiming reimbursement for sums expended in the course of litigation bears the burden of establishing the reasonableness of the charges claimed.
 I have suffered, on this assessment, from a paucity of evidence offered by the defendants in support of the disbursement claims. With respect to the Lanki Investigations Inc. invoices I have no evidence before me as to the necessity for or results of these investigations. I am told by counsel that the investigations, which consisted largely of video surveillance, were instrumental in resolving this claim. I have no evidence as to this effect, however, only records of the amount of time spent by various individuals. I note that the surveillance took place after the delivery of the offer to settle and in the last two weeks prior to trial. Mr. Smith says that the surveillance materials were of little value and that the case settled when it did because of a clarification in the law of costs and a change in his client’s employment. The former, he says, meant that his client would potentially net more money as a result of accepting the offer than he had previously anticipated, and the second meant a substantial limitation of his claim for loss of future earnings. These details are confirmed to some extent by the plaintiff’s affidavit of February 6, 2009. In the circumstances, while I am not prepared to say that the defendants’ expenses for surveillance were entirely unreasonable, I am compelled by the tariff item and the case law to allow them only if settlement was achieved as a result of the services provided. In the absence of any evidence from the defendants on this point, I cannot do so. The Lanki accounts are disallowed.