Costs Update: More on Rule 15 and Pre Trial Settlement Costs
Last year reasons for judgement were released discussing the lump sum costs available to parties under Rule 15. Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, finding that the quantum pre trial Rule 15 settlement costs should remain a matter of discretion.
In the recent case (Benz v. Coxe) the parties settled a personal injury claim for an undisclosed quantum plus costs. The parties could not agree to the amount of costs and the issue was put before the Court. Ultimately Registrar Sainty held $6,5000 was an appropriate quantum of costs on the facts of the case (settled in the mature phase of litigation) but held that no hard and fast rule should exist making this amount appropriate across the board. In doing so the Court provided the following reasons:
[15] I appreciate the submissions of counsel. I have found those of Mr. Jeffrey to be more persuasive than those of Mr. Cope. I am going to continue to support my decision in Cathcart No.1 for a variety of reasons.
[16] Firstly, I think it is important to note, as Harvey J. confirmed in Gill v. Widjaja, supra, that Rule 15-1(15) gives the Registrar wide discretion in determining the appropriate tariff amount. If I were to accede to Mr. Cope’s submission — that in every case you get the cap unless there are special circumstances — I believe that, would be taking away from the discretion given to the Registrar to make these types of decisions.
[17] Secondly, I think Mr. Cope’s approach, rather than taking away from confusion, makes matters more confusing. I do not think one can draw a line in the sand and decide, for example, that where there has been discovery and there are no other special circumstances, you get the cap. However, If there has been no discovery and there are no other special circumstances (yet to be decided and which must be argued), you will probably get some proportion of the cap. One might still end up in the same position. Because whether you call it special circumstances, parsing out, or rough and ready, the parties will still end up assessing costs before a registrar who would then decide where the case was, in terms of preparedness, and who would also have to decide if there are (or are not) special circumstances such that the cap or something less might be awarded.
[18] I agree with Mr. Jeffrey, who submitted that the fairest approach in these types of circumstances is to consider all of the circumstances of the action. I also agree that the fact Harvey J. says one should not get bogged down in the details does not take away from the rough and ready approach, which is actually more fair, I think, to all the parties, because to make discoveries, say, the arbitrary line in the sand could result in some injustices. For example, there may be those odd circumstances where no discoveries have been conducted and were set for a week or two before trial for some reason or other. In those circumstances, using Mr. Cope’s “line in the sand”, a plaintiff might have to apply to a registrar to find special circumstance so that they might get the full cap amount (or something approximating it) if the case settled before the discoveries had been conducted but still, essentially, on the eve of trial.
[19] On the basis of all of the above, I stand by my decision in Cathcart No.1.