Court Orders Plaintiff To Pay Defendant’s Post-Offer Costs For Failing To Beat Defendant’s Formal Offer

Proceeding to a trial in an ICBC injury claim can carry great financial risk. For example, if a Plaintiff, although successful at trial in obtaining a judgment, does not beat the amount of ICBC’S last formal offer to settle, he or she can be subject to serious financial consequences.


Nowhere is this more evident than in the case of Gill v. McChesney.


The Plaintiff was injured in a motor vehicle accident, and consequently brought formal legal proceedings. Prior to trial, ICBC’S lawyer made two formal offers to settle, with the second one before shortly before trial. The offer was rejected by the Plaintiff.


The Plaintiff succeeded at trial in obtaining a judgement, however it was far less than the amount of ICBC’S final formal offer to settle. This triggered the Court’s discretion to consider costs consequences against the Plaintiff.


The Court  considered the four factors in Rule 9-1(6) of the Supreme Court Rules :


(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;


(d) any other factor the court considers appropriate.


In focusing on Rules 9-1(6)(a) and (b), the Court ruled that the Plaintiff should have accepted a reasonable offer, and that the amount of the judgment was significantly less than the amount of both of the lawyer for ICBC’S offers.


[54] When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.


[55] While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.


[56] Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.


[57] As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:


[47] But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.


[58] In my view, that is what occurred in this case.


[59] Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.


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