In personal injury cases there are four different types of offers that can be made to ICBC and insurers: pre-litigation oral offers; pre-litigation written offers; post-litigation oral offers; and post-litigation written offers. We can break down written offers into informal and formal offers to settle. This article will briefly explain how an ICBC claimant can make a written formal offer to settle. These types of offers, if beaten can dramatically increase a claimants entitlement to compensation for costs.
Offers to settle are found in Rule 9-1 of the Supreme Court Civil Rules which defines “offer to settle” to mean:
(c) An offer to settle made after July 1, 2008 under Rule 37B of the former Supreme Court Rules, as that rule read on the date of the offer to settle, or made under this rule, that
(i) is made in writing by a party to a proceeding,
(ii) has been served on all parties of record, and
(iii) contains the following sentence: “The ………. [party(ies)] …….., [name(s) of party(ies)] …….., reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding.”
This was referred to by G.C. Weatherill J. in Arsenvoski v. Bodin, 2014 BCSC 199, as the “magic language”. The phrase “without prejudice”, on the other hand, 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”.
Rule 9-1(5)(b) allows a court to award double costs for all or some of the steps after the offer to settle, and Rule 9-1(6), sets out the factors the court may consider which include:
(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;
(b) the relationship between the terms of settlement offered and the final judgment of the court;
(c) the relative financial circumstances of the parties; and
(d) any other factor the court considers appropriate.
Rule 14-1(9) states that costs of a proceeding, subject to (12) dealing with applications, must be awarded to the successful party, unless the court otherwise orders.
Here is an example of a form ICBC_OFFER_SETTLE letter that has been accepted by the Supreme Court of British Columbia, allowing the claimant double costs of trial, after the offer had been beaten by the claimant. Written formal offers can have a dramatic effect on the costs result of a case and should always be tailored to each case based on the facts. Additional clauses should be included and a more detailed settlement proposal should precede any such formal offer to settle.
Posted by Personal Injury Lawyer Renn A. Holness, B.A. LL.B. providing ICBC settlement advice for over 20 years.
