In the context of ICBC injury claims, mistrials can sometimes arise. A mistrial is when a trial is found to be null and void due to some irregularity in the proceedings. Examples of this can include inappropriate opening or closing submissions made by counsel for the Plaintiff or counsel for the Defendant.
In Walker v. Doe, the Plaintiff was a motorcyclist who was injured when he was struck by a tire from a motor vehicle driven by an unnamed motorist. The Plaintiff brought an ICBC injury claim for pain and suffering, as well as various other forms of damages. The trial proceeded via judge and jury, with the judge declaring a mistrial after Plaintiff counsel’s closing submissions. An appeal of this ruling was then filed. Counsel for the Defendant then brought an application for costs, which Plaintiff‘s counsel argued should be heard by the Justice presiding over the new trial. Counsel for the Defendant argued otherwise. The original trial Justice would eventually rule that, in the circumstances of this case, that the original trial Justice would hear the costs application. In particular, the Justice focused on the issue that the main focus of the costs application was an order for special costs against counsel for the Plaintiff.
 The broad question of whether there is a “longstanding practice” in this province that directs that the costs arising from a mistrial should be assessed by the ultimate trial judge misses an important aspect of the particular issue before me. The issue on this application is not, as the Response filed by the plaintiff suggests, whether “[t]he allocation of costs thrown away as a result of the mistrial should be in the ultimate cause or decided by the judge before whom the case is ultimately tried”.
 The real issue, instead, is who should hear an application for costs, following a mistrial, when the dominant focus of that cost application is an order for special costs against counsel for the party that caused the mistrial. The fact that the dominant, if not overwhelming, focus of the defendant’s application is an order for special costs against counsel is patent from the submissions of the parties as well as from the materials and authorities that each has filed.
 A further factor militates against having the ultimate judge who oversees the trial of this matter address the present application. Special cost awards are fact driven; FFS HK Ltd. v. P.T. 25 (Ship), 2011 BCSC 1418 at para.10. The decision whether to award special costs “is a matter of judgment on all the facts for the individual case in deciding whether the party in question went over the line”; Cimolai v. Hall et al, 2007 BCCA 225 at para. 71.
 The benefit of having the judge who heard the trial and counsel’s submissions which gave rise to a mistrial, also hear the ensuing special costs application is obvious. In Cunningham v. Slubowski, 2004 BCSC 1204, Madame Justice McKenzie, as she then was, following a 20 day trial, heard an application for costs, including special costs, against counsel. She observed:
 This trial was difficult for all concerned. Ms. Wellburn provided me with valuable assistance on this hearing. She made a valiant effort to grasp the course of the proceedings, but had the disadvantage of not having been counsel at trial. Counsel ordered a few transcripts of the proceedings, but I decided on 7 May 2003, on counsels’ request, that full transcripts were not justified by the expense. As the trial judge, I had the unique position of assessing the course of the proceedings at trial. My recollection remains vivid and, as referred to above, I have considered all the voluminous material filed on this application.