Rule 15-1 and Pre Trial Settlement Costs

Useful reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, addressing costs consequences when fast track cases settle prior to the first day of trial.  In short the Court held that the rules operate to fix lump sum costs of $6,500 in these circumstances.
In today’s case (Gill v. Widjaja) the Plaintiff was injured in a collision.  The Plaintiff sued pursuant to Rule 15.  ICBC made a formal settlement offer of $34,800 plus assessable costs and disbursements.  Following this the parties could not agree on some of the disbursement items.  The matter was ultimately put before the Court and in adjudicating the dispute Master Baker confirmed that costs under Rule 15 are set via lump sum.  Specifically the Court provided the following useful reasons:

[16] Tariff amount and Rule 15-1. The real question is: how much should the fee mandated by Rule 15-1, when the matter is settled without trial, be further affected by preparation or lack thereof?  Counsel agree that the starting sum is $8,000.00 and that, since no trial proceeded, there should be a reduction of one day’s costs ($1,500.00). After that they disagree. Mr. Cope says there should be the equivalent of one-half day’s trial cost added back in for trial preparation. Ms. Tonge says $2,000.00 should be further deducted. Certainly, the Rule permits departure from the indicated amount, as it is prefaced with “Unless the court otherwise orders…”.

[17] I start with the assumption that, once the portion attributed to the first day of trial is deducted, the balance is allocated to preparation. It would take compelling facts and circumstances to depart from that simple principle. And that simple principle should be applied when one recalls that the costs provisions of Rule 15-1 are intended to be summary in nature and to avoid assessments such as this. Counsel referred me to other authorities considering and, in effect, parsing pre-trial proceedings, but those cases seem to apply to situations where Rule 37 or 37B offers were made and either accepted or refused. In those cases, of course, it became important to mark the point in the proceedings when the offer was made and to then invoke the Rules’ effects on costs for the proceedings thereafter. In such a case it would require that some assessment be made of the degree of preparation done at the point of the offer. This is not that case.

[18] Mr. Cope argued that Ms. Gill was due some allowance for preparation, yet the tariff items in his bill included Item 17 “All process and correspondence associated with retaining and consulting all experts…” and Item 18 “All process and correspondence associated with contacting, interviewing and issuing subpoenas to all witnesses”. While the items do not apply per se, as Rule 15-1(15)’s omnibus cap does instead, Mr. Cope obviously considered all of that to include most, if not all, of the usual allowable stages of preparation. His draft in the form presented is a tacit admission of that. Moreover, as Ms. Tonge pointed out, there is no evidence of any unusual preparation having occurred before the offer was made and accepted.

[19] Similarly, there is no basis to take the reverse view and conclude that, given the matter settled seven weeks before trial, that no, or substantially no, preparation would have taken place. Quite the contrary: it is clear that Mr. Cope took the usual steps to obtain and organize the evidence he would need to that point and that those preparations were sufficient that he and Ms. Gill were prepared to settle.

[20] In the end there is no basis for any intervention by me, either to deduct or add in, respecting preparation costs. The only deduction from the fast track capped cost will be $1,500.00 representing the first day of trial.

[21] In sum, then, the fee portion of Ms. Gill’s bill of costs is fixed at $6,500.00