In this car accident settlement case(Stapleton v. Charambidis) the injury claimant was involved in two motor vehicle accidents. Fault for the first accident was a big issue so the lawyers agreed to have a trial on the issue of fault. The trial judge found the injury claimant 80% at fault and the other driver 20% at fault. The judge also ordered that “Costs of this trial will follow the event”.
The injury claim ultimately settled out of court for $100,000.00 plus costs. The parties could not agree on costs so they went to court to have a registrar assess the costs. The greatest point of dispute in the assessment was the accounts of Stafford and Associates. Mr. Campbell Stafford was first retained as an accountant and later as a valuator. The total Stafford fee claimed was $39,479.04. The court found that the claimant’s business was not complex. It involved a very simple business model, he secured coffee supplies and delivered them to retail customers, only one partner, and a very limited number of customers. The court could not understand why the analysis of his possible past and future loss in that undertaking consumed so much time and such a high degree of expertise as that offered by Mr. Stafford. The new rules, with their emphasis on proportionality, have placed new emphasis against expenses that are extravagant or are a result of excessive caution or excessive zeal, said the court.
As stated by Master Baker, sitting as Registrar:
“ But fourthly and significantly, there are the new Rules of Court and their emphasis on proportionality. Much of the thrust of the quest for proportionality is, of course, directed to steps and processes in the litigation itself as in, for example, the discovery of documents, limitations on examinations for discovery and, indeed, the necessity at an early stage for an overall litigation plan. But surely this proportionality must, in appropriate circumstances, extend to disbursements expended by the parties.
 Disbursements are allowed, or not, in accordance with Rule 57(4), now Rule 14-1(5) and, of course, the reasoning in Van Daele v. Van Daele: a “reasonable amount” will be allowed for those expenses “necessarily or properly incurred”.
 The essential question is usually: was an expense or disbursement necessary at the time it was incurred. This, of course, recognizes the essentially investigatory nature of many expenses. Counsel on both sides of a dispute, as litigation develops, are engaged in constant investigation and re-investigation, revisiting earlier perspectives and conclusions in light of developing facts and information. They cannot be faulted for incurring expenses that, in the final analysis, do not advance their case. They are obliged to discover both the good news and the bad news, as it were.”
Taking into account factors such as bad records; an uncooperative claimant; possible excessive effort by Mr. Stafford; opinions of other experts; and the need for proportionality the Stafford accounts were reduced to $20,000.00.
I frankly don’t see this proportionality approach being any different than the old rule of expenses being reasonable and necessary. This case still does not explain proportionality in any meaningful way and personal injury lawyers are left wondering whether their clients will be compensated for reasonable expenses. Posted by Mr. Renn A. Holness
Issue: Does this case mean injury claimants’ with small businesses will not be fully compensated for expenses to prove their case because the case is “too small”?