Plaintiff Must "Live With The Consequences" For Failing to Beat Formal Settlement Offer at Trial
Failing to beat a defence formal settlement offer at trial can bring serious financial consequences. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating exactly this.
In today’s case (Gill v. McChesney) the Plaintiff was injured in a vehicle collision and sued for damages. Prior to trial the Defendant made two formal settlement offers, the second of which was $208,750. The Plaintiff rejected this and proceeded to trial where she sought “damages in excess of $1 million“. The trial result was not nearly so favourable with damages being assessed at $87,250.
The Defendant sought to strip the Plaintiff of all of her costs post their formal settlement offer. This would result in a swing in the tens of thousands of dollars. The Court granted this request noting that while it may substantially diminish the Plaintiff’s recoverable damages she must “live with the consequences” of running the trial. In reaching this decision Mr. Justice Abrioux provided the following reasons:
[54] When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.
[55] While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.
[56] Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.
[57] As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:
[47] But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.
[58] In my view, that is what occurred in this case.
[59] Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.