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Difference between revisions of "ICBC and Personal Injury Claims (12:XII)"
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ICBC and Personal Injury Claims (12:XII) (view source)
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=== 4. Formal Offers to Settle and Cost Consequences === | === 4. Formal Offers to Settle and Cost Consequences === | ||
Under Rule 9-1 of the Supreme Court Rules, a plaintiff or defendant who refuses a reasonable offer to settle may be penalized for needlessly dragging out the litigation. | Under Rule 9-1 of the ''Supreme Court Rules'', a plaintiff or defendant who refuses a reasonable offer to settle may be penalized for needlessly dragging out the litigation. | ||
:'''NOTE:''' An offer to settle does not expire due to a counter offer being made. | :'''NOTE:''' An offer to settle does not expire due to a counter offer being made. | ||
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Such an offer to settle must not be disclosed to the court/jury or set out in any proceeding until all issues in the proceeding, other than costs, have been determined. Also, an offer to settle does not constitute an admission. | Such an offer to settle must not be disclosed to the court/jury or set out in any proceeding until all issues in the proceeding, other than costs, have been determined. Also, an offer to settle does not constitute an admission. | ||
If a plaintiff accepts an offer, the sum of which falls in the jurisdiction of the Provincial court (''Small Claims Act''), they are | If a plaintiff accepts an offer, the sum of which falls in the jurisdiction of the Provincial court (''Small Claims Act''), they are '''not''' entitled to costs, other than disbursements. However, this rule can be overridden if the court finds a sufficient reason for the proceeding taking place in the Supreme Court. | ||
The court, in assessing costs has broad discretion to consider a refusal to settle in making an order with respect to costs. The court may consider: | The court, in assessing costs has broad discretion to consider a refusal to settle in making an order with respect to costs. The court may consider: | ||
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*Where the plaintiff refuses an offer to settle from the defendant, and the eventual judgement is no greater than the offer, the court may award the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of the offer. | *Where the plaintiff refuses an offer to settle from the defendant, and the eventual judgement is no greater than the offer, the court may award the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of the offer. | ||
The rules penalizing a plaintiff for overreaching the true value of a claim can be catastrophic | The rules penalizing a plaintiff for overreaching the true value of a claim can be catastrophic, and can visit financial ruin upon a claimant who does not exercise a sober and realistic assessment of his or her claim as he or she proceeds into Supreme Court. It is entirely within the realm of possibility that a claimant who refuses to accept an offer of $30,000.00, after judgment for $29,000.00 (i.e. lower than the offer to settle) would finish the day, after paying the insurer’s costs and disbursements, and his or her own disbursements, with '''nothing''' or '''less than nothing''': a debt to the insurer and his or her own lawyer for disbursements. | ||
It should be stressed to clients that the lawyer who is hired to do a personal injury case is supposed to be objective, realistic, and not inclined to simply tell the client what they want to hear. When a lawyer talks about the risks of litigation, this penalty for misjudging the value of a case is one of the most important risks to consider. | |||
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