More on Rule 37B; Settlement Offers, Acceptance and the Discretion of the Court

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing whether the BC Supreme Court has discretion to make costs awards after a formal settlement offer is accepted that specifically addresses costs consequences.
In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC collision.  He sued for damages.  The defence lawyer (instructed by ICBC) made a formal offer to settle the case for $75,000 plus costs up to the time that the offer was made with the Defendant being entitled to costs thereafter.  (this offer was made under the old Rule 37 which has now been repealed).
The Plaintiff initially dismissed the offer and continued in the lawsuit.   Three days before trial the Plaintiff accepted the offer.  The parties could not agree on the costs consequences.  The Plaintiff argued that Rule 37B (the rule that governed at the time of acceptance) gave the Court discretion to award her costs up to the date the offer was accepted.   Mr. Justice Verhoeven disagreed and held that when a settlement offer is accepted that specifically spells out the costs consequences there is no discretion for the Court to exercise under Rule 37B.  The Court provided the following reasons:
[28] But it has also been held that a settlement agreement containing terms as to payment of costs leaves the court with no room for the exercise of discretion pursuant to Rule 37B:  Buttar v. Di Spirito, 2009 BCSC 72 at para. 17..

[30] Madam Justice Gerow held that the court had no discretion to award costs in the matter before her. She stated at para. 11:

[11]      Both parties advanced arguments that the court has discretion under Rule 37B to make an order regarding costs. However, it is my opinion that the court has no discretion to make an order regarding costs in this matter. Mr. Buttar accepted the offer put forth by the defendants, including the offer regarding costs, without reservation. It is my view that Rule 37B does not confer a discretion on the court to set aside an agreement that has been entered into between the parties regarding costs.

[31] On this basis, where a party has specified the costs consequences of acceptance of its offer to settle, within an offer to settle to which Rule 37B applies, and a settlement agreement results in accordance with the offer, the court does not retain a discretion to depart from the terms of the agreement.

[32] Put another way, it remains open to litigating parties to make an offer to settle within the meaning of Rule 37B and to specify the costs consequences of acceptance of the offer. In my view this is a positive result. It allows the parties to create their own bargain. It provides for certainty, and avoids the need for applications to court where a settlement agreement is reached, while preserving the court’s discretion in cases where no settlement occurs…

[37] In my view the agreement that the parties made was unambiguous. The defendants’ offer was clear in relation to the costs consequence of acceptance; the defendants would pay the costs until the date of the offer, and if the plaintiff were to accept the offer after that date, then the defendants would be entitled to costs after that date.

[38] After July 1, 2008, when the new rule came into effect, the defendants’ offer remained open for acceptance in accordance with its terms. The defendants had not withdrawn it or amended it. The new rule affected the costs consequences in the event that the offer was not accepted, and the court went on to render a judgment. That did not occur…

[61] The plaintiff will receive costs in accordance with Appendix B, Scale B, for the time leading to delivery of the defendants’ offer to settle. The defendants will receive costs following that date. No argument was presented to me that there should be any distinction between the tariff items and disbursements. The applicable costs will include both tariff items and disbursements.

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 this one retain their value as precedents.