Plaintiff Stripped of Post Offer Costs and Disbursements For Failing to Beat Formal ICBC Settlement Offer
In my continued efforts to track the judicial discretion of costs awards following trials with formal settlement offers in place, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing costs consequences were a jury award was some 25% of ICBC’s best pre-trial formal settlement offer.
In the recent case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision. Prior to trial ICBC made three formal settlement offers, the final being $222,346. The Plaintiff rejected this offer and proceeded to trial. A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000. ICBC applied for post offer costs. Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements. Given that the trial lasted 10 days this is a significant financial consequence. In finding this appropriate Mr. Justice Voith provided the following reasons:
 There should be some consequence attached to the plaintiff’s failure to accept the defendant’s third offer of settlement. Having weighed the factors I have identified, I consider that an appropriate result would be to give the plaintiff his costs, including his disbursements, up to December 21, 2011. Each party is to bear their own costs and disbursements after that date. Though every case turns on its own facts and circumstances, the foregoing result aligns with the conclusions arrived at in each of Lumanlan and Khunkhun.