In this civil claim against the Province the claimant was awarded over $8 million for his wrongful conviction and subsequent incarceration. Crown Counsel failed in its duty of disclosure by intentionally withholding relevant information despite repeated requests. Wrongful non-disclosure seriously infringed the claimant’s right to a fair trial. The court also found that if there had been proper disclosure the likely result would have been his acquittal (Indexed at 2016 BCSC 1038).
Despite this spectacular compensation award for misconduct the claimant was denied his request for specials costs for his subsquent lawsuit against the Province. Special costs are essentially the real legal fees and expenses incurred by a party and not just a contribution toward that cost which is normally awarded. The application was denied with these comments,
I am unable to conclude that the province intentionally used its financial superiority to unfairly disadvantage Mr. Henry. While his financial strength was vastly inferior to that of the Province, I do not consider that the Province used its advantage unfairly, and indeed, Mr. Henry was ably represented before trial, on appeals to the Court of Appeal and the Supreme Court of Canada, and at trial by as many as nine counsel.
 I agree with Gropper J. where she stated in Westsea that the Court must exercise restraint in awarding specials costs. Applying the principles articulated by Gropper J., there is no basis for findings in this case of improper motive, abuse of the Court’s process, misleading the Court, and persistent breaches of the rules of professional conduct and the rules of court that prejudiced Mr. Henry.
 I am unable to conclude that the Province’s conduct in this litigation, while lacking in the respects I have set out above, was sufficiently reprehensible to constitute the exceptional circumstances to justify a special costs order. Despite the absence of evidence of the difference between the actual legal expenses of Mr. Henry and the costs to which he would be entitled under the scale of costs fixed under subsection (1) or (4) of contemplated by s. 2(6) of Appendix B of the Rules, I am satisfied that the application of s. 2(5) of that Appendix will address the failings of the Province that I have discussed above.
 I therefore order that Mr. Henry recover his costs at Scale C of Appendix B of the Rules and that each unit allowed be 1.5 times the value that would otherwise apply to a unit in that scale under s. 3(1) of the Appendix. (Henry v. British Columbia (Attorney General),2016 BCSC 1494)
This decision, juxtaposed with with recent case in which ICBC was ordered to pay specials costs for non-disclosure of a video, highlights the abusive litigation strategy now employed by ICBC in personal injury cases.
In the underlying claim for damages the claimant was awarded the following:
i. Compensatory damages in the amount of $530,000 under s. 24(1) of the Charter;
ii. Special damages ( out of pocket expenses) in the amount of $56,691.80; and
iii. Damages in the amount of $7,500,000 to serve both the vindication and deterrence functions of s. 24(1) of the Charter. Total: $8,086,691.80.