If you have a personal injury case in which the Court has awarded more than the offer you made before trial, you may be entitled to double your legal costs. The relevant parts of The Supreme Court Rule 9-1(5) and (6) state:
(5) in a proceeding in which an offer to settle has been made, the court may do one or more of the following:
. . .
(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.
(6) in making an order under subrule 5, the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepting either on the date that the offer to settle was delivered or served or on any later date.
(b) relationship between the terms of settlement offered and the final judgment of the court.
(c) the relative financial circumstances of the parties.
(d) any other factor the court considers appropriate.
The case of Hartshorne v. Hartshorne, 2011 BCCA 29 established that:
a) Supreme Court Rule 9-1(5) and (6) encourage settlement of lawsuits by rewarding parties who make reasonable settlement offers that should have been accepted and by penalizing parties who unreasonably refuse to accept reasonable settlement offers and force matters to trial; and
b) The reasonableness of the offer depends considering various factors, including the time of the offer and whether in all the circumstances the offer should have been accepted.
The first factor under Rule 9-1(6), whether the offer to settle was one that ought reasonably to have been accepted is determined by reference to the circumstances existing when the offer was open for acceptance. See Hartshorne v. Hartshorne, 2011 BCCA 29, at paragraph 27.
To succeed in your application for double costs you should prepare a detailed settlement proposal at least a few weeks before trial. Therefore any further offers should be well understood by the defence and ICBC.
In Yip v. Saran, 2014 BCSC 1593 the plaintiff offered to settle for the sum of $72,604.96and the judge awarded $72,802.02. The judge concluded that the offer to settle was one that ought reasonably to have been accepted. The offer was made shortly before the trial was scheduled to begin, but there was no reason to say that the defendant or ICBC had insufficient time to consider it. As he pointed out,
“The offer was made after the parties had attended a trial management conference… the total amount of the judgment is very close to the amount of the offer to settle. I see this as a factor favouring the plaintiff… Therefore, in my opinion, based on the offer to settle, the plaintiff is entitled to double costs for the five days of the trial.”
With respect to the timing of an offer, the jurisprudence does not require a specific amount of days notice of an offer to settle ( see Best v. Thomas,2014 BCSC 2487, para 34-35). Make sure that ICBC is aware of the risks of the case and point out that they were not prevented from accepting the offer.
As for the relative financial circumstances of the parties,the defendants are often represented by counsel hired by Insurance Corporation of British Columbia (ICBC), which is well-financed and can afford to take the risks of trial. This factor, therefore mostly weighs in favour of the claimant being awarded double costs ( see J.D. v. Chandra, 2014 BCSC 1272)
Read more of our articles about settlement and learn more about making an ICBC settlement offer.