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Vancouver ICBC Injury Settlement Lawyer

Our Vancouver ICBC Injury settlement lawyers know the use of offers to settle to settle ICBC Car accident injury cases and claims is critically important. Reasonable offers to settle in Vancouver ICBC Injury settlement cases must be carefully considered by both the injured victim and the defendant who has caused the ICBC accident claim. Failure to do so can result in nasty consequences.  It’s important you get immediate legal advice from an experienced ICBC car injury claims lawyer. Call us now at 604-602-9000.

What Happens If An Offer To Settle Isn’t Accepted?

In Dennis  the court awarded pain and suffering and economic loss damages of just under $50,000. The defendant had offered to settle the matter in writing before trial for approximately $280,000 and the judge found the plaintiff’s credibility lacking at trial.

What happens to the costs for lawyers and medical and other out of pocket expenses when a plaintiff gets far less than the defendant offers to settle for? Justice Bruce restated the law:

[21]         The plaintiff was the successful party in the litigation and thus normally she would be entitled to an order for costs pursuant to Rule 14-1(9) unless the Court orders otherwise. However, the defendant argues that he is entitled to an order for costs under Rule 9-1(4) because of the offer to settle served upon the plaintiff prior to trial.

[22]         An order in the defendant’s favour is no longer automatic. Rule 9-1(5) grants the Court a discretion to award costs to the defendant where there is an offer to settle prior to trial. The choices available to the Court are described in Rule 9-1(5) as follows:

(a)  deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(b)  award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(c)  award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d)  if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.

[23]         Rule 9-1(6) articulates the factors the Court may consider when exercising its discretion to award costs in light of an offer to settle. These factors 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;

(d)  any other factor the court considers appropriate.

[24]         The underlying purpose of Rule 9-1(4) is articulated in Paskall at para. 29:

The underlying purpose of the rule is to encourage settlement by rewarding the party who makes a reasonable offer and penalizing the party who declines to accept such an offer: AE (Litigation guardian of) v DWJ, 2009 BCSC 505 at para 61, aff’d 2011 BCCA 279. In Dempsey v Oh, 2011 BCSC 627 at para 19, it is made clear that “[i]t is not the court’s function to ensure that a plaintiff makes a net recovery from an action when it has ignored a reasonable offer.” However, this Court has said that “one should be cautious, with the advantage of hindsight, in equating having guessed wrongly with having been unreasonable in rejecting an offer”: Lumanlan v Sadler, 2009 BCSC 142 at para 35; Fan v Chana, 2009 BCSC 1497 at para 19.

[25]         Turning to the factors outlined in Rule 9-1(6), whether the offer ought reasonably to have been accepted is not viewed with hindsight and in light of the actual amount of the judgment. It is the circumstances at the time of the offer that determine whether it should have been accepted by the plaintiff. As the Court of Appeal said in Hartshorne v. Hartshorne, 2011 BCCA 29 at para. 27:

The first factor – whether the offer to settle was one that ought reasonably to have been accepted – is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that the offer was open for acceptance, it would have been reasonable for it to have been accepted: Bailey v. Jang, 2008 BCSC 1372, 90 B.C.L.R. (4th) 125 at para. 24; A.E. v. D.W.J. at para. 55. As was said in A.E. v. D.W.J., “The reasonableness of the plaintiff’s decision not to accept the offer to settle must be assessed without reference to the court’s decision” (para. 55). Instead, the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to simply being a “nuisance offer”), whether it could be easily evaluated, and whether some rationale for the offer was provided. We do not intend this to be a comprehensive list, nor do we suggest that each of these factors will necessarily be relevant in a given case.

[37]        Having considered all of the relevant factors, I find that the defendant is entitled to his costs at Scale B and disbursements from the date of delivery of the offer to settle on July 31, 2012, and thereafter. The plaintiff is entitled to her costs at Scale B and disbursements up to the delivery of the offer to settle on July 31, 2012. I have not awarded the defendant double costs pursuant to Rule 9-1(5) due to the extremely poor financial circumstances of the plaintiff. This factor outweighs the other relevant considerations in the particular circumstances of this case.

In the end result it is unclear whether the Plaintiff would receive any money from the judgment after her costs owed to the defendant are deducted.

If you are injured you need a Vancouver ICBC Injury Settlement Lawyer that knows how offers to settle can help or hurt you. Get straight advice at a free initial consolation by calling 604-602-9000 now.



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