In complicated civil litigation there may often be multiple orders of the court, some in favour of a litigant and some against. All the while offers to settle are being exchanged privately. What does it mean by the end of a trial to beat an offer to settle and be “substantially successful”? The Court of Appeal clarifies what it means to be substantially successful in litigation. This analysis will assist personal injury lawyers to define success at trial when determining trial costs.

In our case study, Reid v. Reid,2017 BCCA 191, Mr. Reid contends that Ms. Reid was not substantially successful on appeal, because the amount she was seeking on appeal was several times the amount she was awarded. He argued that a party is not “substantially successful” unless they have recovered approximately 75% or more of what was sought, citing Marquez v. Zapiola, 2014 BCCA 35 para 16:

Success in the event has been interpreted as “substantial success”: see Fotheringham v. Fotheringham, 2001 BCSC 1321, 13 C.P.C. (5th) 302, leave to appeal ref’d 2002 BCCA 454. In Fotheringham, Mr. Justice Bouck described this standard as follows:

[45]      Gold [Gold v. Gold (1993), 82 B.C.L.R. (2d) 180 (C.A.)] now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance. The words “substantial success” are not defined. For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better. That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when [looking] at all the disputed matters globally.

The Court of Appeal found that  Marquez does not require the Court, in determining “substantial success”, to undertake a mathematical comparison of the amount claimed to the amount awarded. Rather, “the Court has broad discretion to take into account myriad considerations in assessing whether a party has been substantially successful.”

Determining which part was substantially successful on an appeal is a matter of court judgment, and the Court may, in exercising its discretion, take into account a broad array of factors.

The Court of Appeal was not however persuaded that Ms. Reid was substantially successful with respect to the issues at trial. The situation at trial was more complex than the situation on appeal. “Some complicated and time-consuming issues raised by Ms. Reid at trial were not pursued on appeal. Further, there were several difficult factual issues canvassed at trial which were decided adversely to Ms. Reid. Therefore, we are not of the view that Ms. Reid was substantially successful at trial.”

The Offer to Settle

[16]         The trial judge noted that there was a substantial offer to settle in advance of trial. In light of that offer, he awarded Mr. Reid double costs from the date of the commencement of trial.

[17]         Mr. Reid’s offer was substantially more generous than the amount Ms. Reid was ultimately awarded on appeal. In the circumstances, we see no reason to depart from the trial judge’s conclusion that Mr. Reid should receive double costs for the trial proceedings from the first day of trial onward. As the trial judge found, the issues at trial were of more than ordinary difficulty, and we would not interfere with his view that trial costs should be assessed on that basis

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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