The injury claimant was found to be totally at fault for a car accident at the intersection of King George Boulevard and 68th Avenue, in Surrey, B.C. His personal injury claim was therefore dismissed and today I review the decision of the Judge regarding the case costs awarded to the successful defendant (Henry v. Bennett, 2014 BCSC 1963).
The successful ICBC insured defendant driver applied for an award of costs of the lawsuit from the date of the delivery of her first offer to settle, and double costs after that pursuant to Rule 9-1(5) of the Supreme Court Civil Rules. The defendant offered to pay $9,000 after taking into account ICBC Part 7 benefits paid or payable and any advances paid to the date of the offer. The amount offered included court order interest assessed to the date of delivery of the offer but excluded costs.
Given the modest settlement amount proposed and because it was made before any of the medical reports had been produced the judge concluded that it was reasonable for the injury claimant to decline it. Moreover, the Insurance Corporation of British Columbia offer did not contain the wording required by the rules of court. As the clear but the Judge,
 Rule 9-1(1) imposes technical requirements in the definition of an “offer to settle”. Not all settlement offers exchanged between parties will constitute an offer to settle within the meaning of the Rule. In order to qualify, the offer must be made in writing by a party, be served on all parties of record, and contain an express reservation of the right to bring the offer to the attention of the court for consideration in relation to costs, after the court has pronounced judgment on all other issues in the proceeding. Compliance with these essential criteria is important: Roach v. Dutra, 2010 BCCA 264; Royal Bank v. B.M.P. Global Distribution Inc., 2011 BCSC 1650.
The ICBC settlement letter did not contain the requisite reservation clause, or even a modification of it that would sufficiently signal to the claimant that it was intended as an offer within the meaning of Rule 9-1. The phrase “without prejudice” in a letter that proposes settlement, without more, does not serve as proximate language for the express reservation mandated in the definition of “offer to settle”. Accordingly the judge did not regard the settlement letter as an offer to settle under the Rule.
Due the the operation of a second offer however the defendant was entitled to costs of the personal injury lawsuit at Scale B up to and including the second offer and double costs thereafter.