"Walk Away" Offer Results in Double Costs After Plaintiff Claim Dismissed

Reasons for judgement were released today ordering a Plaintiff to pay costs and post offer double costs after having his personal injury claim dismissed at trial.
In today’s case (Johnson v. Jamiesen) the Plaintiff was involved in a 2010 collision.  Fault was disputed.  In the course of the litigation the Defendant made an offer to settle the claim for $0 with both parties bearing their own costs to date.  The Plaintiff proceeded to trial and the claim was dismissed.  In finding that the ‘walk away’ offer ought to have been accepted and awarding double costs Mr. Justice Brown provided the following reasons:

[14]         The plaintiff had in hand the defendant driver’s witness statement when he received the offer to settle. Six months later, the parties conducted examinations for discovery. The only witness called by the plaintiff was his girlfriend. He should have been aware of the reliability and shortcomings in her evidence by then. Further, following examinations for discovery, the plaintiff was positioned to see the perils of his position on liability.

[15]         The defendants characterize their offer as a “walk-a-way” offer. While a nuisance offer may bear no real relationship to a plaintiff’s claim and not constitute an offer reasonably capable of acceptance, the court has recognized a walk-a-away offer may bear a realistic relationship to the plaintiff’s claim, reasonably capable of acceptance and, if rejected, justify an award of double costs, Riley, v. Riley, 2010 BCSC 822. In Riley, the court found the plaintiff possessed all the information the defendant intended to rely on at trial, which in this case, would be the evidence of the defendant driver. There were some potential accident witnesses at the scene potentially available to the plaintiff, but he could not call them because he and his girlfriend chose not to obtain any contact information from them, electing to go to a pub for a beer and to watch the hockey game.

[16]         The weaknesses of the plaintiff’s case on liability were quite apparent, his testimony rife with inconsistencies and improbabilities. I agree with the defendants that the plaintiff should have readily recognized the high risk of dismissal that he faced. I note the offer was open for acceptance any time before 4:00 p.m. on the last business day before commencement of the first day of trial. The long period between the tender of the offer and trial afforded ample time to consider the offer, which I find was one reasonably capable of acceptance.

[17]         See, besides Riley: Henry v. Bennett, 2014 BCSC 1963 at paras. 29 and 30; Houston v. O’Connor, 2011 BCSC 509 at para. 59; Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16 [“Catalyst”]; Brooks v. Gilchrist, 2011 BCSC 56 at para. 16; and Bay v. Pasieka, 2014 BCSC 809 at para. 20.

[18]         In Catalyst, Hall J. A. made this useful comment at para. 16:

[16]      It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process. The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation. The rules should discourage the continuance of doubtful cases or defences. This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations. Such considerations should, among other things, encourage reasonable settlements.

[19]         I am not aware of any particular financial considerations. The plaintiff has not made submissions on costs.

[20]         Accordingly, the defendants have an order for all costs of the proceedings at Scale B, up to and including May 15, 2012. For all the steps they took in the proceeding after the October 9, 2012 examinations for discovery, they are entitled to double costs.

bc injury law, Johnson v. Jamieson, Mr. Justice Brown, walk away offer

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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