This personal injury Claimant was walking through a parking lot of a strip mall in Cranbrook, B.C. when he was struck by and injured by a motor vehicle. The trial judge concluded that the driver was 33 1/3% liable and the Claimant was 66 2/3% liable for the accident. However the Claimant’s appeal was allowed and liability was reapportioned 75% against the defendant driver and 25% against the pedestrian Claimant (Russell v. Parks, 2014 BCCA 367). In this decision, after his successful appeal, this Claimant was seeking increased or special costs.
There was a history of settlement offers prior to trial, and a history of acts post-trial relating to trial costs but the Court ordered a partial stay of the $26,000 certificate of costs to the extent of $3,500, and dismissed the security for costs application.
An order for Increased Costs, to compensate for legal fees, is however an unusual order and is sometimes granted if the case is of unusual difficulty or importance. There was no evidence in this case to demonstrate any particular difficulty or importance.
To be awarded Special Costs even more is required, such as improper allegations of fraud, or an improper motive for bringing the proceedings, or improper conduct of the proceedings themselves. The Claimant did not point to any conduct by the Defendant driver the amounted to “reprehensible conduct” to justify an order for special costs.
The Claimant suggested that because his appeal had merit he should be awarded special costs. The driver defended the appeal as he is entitled to do, and the Claimant was successful. As the Judge pointed out: If that was all that was necessary for “special costs” to be ordered, then they would not be very “special” but ordered in every case.
The usual rule was found to apply and the Claimant was awarded his costs of the appeal and the ancillary application. The defendant was awarded his costs of this application.
Posted by Personal Injury Lawyer in Vancouver Mr. Renn A. Holness, B.A. LL.B.- Serving all of BC.
ISSUE: If a Claimant wins an appeal should they be awarded the actual cost of their legal fees?
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