Plaintiff denied double costs even though formal offer beaten by $200,000

December 16, 2016

In reasons for judgment released today, the court in Mayer v. Umabao, 2016 BCSC 2355, declined to award double costs to the plaintiff even though he beat his formal offer by close to $200,000.00. The plaintiff had issued a formal offer to settle for $247,599.80, and was ultimately awarded $445,120.16 at trial.  Madam Justice Young said:

[2]             The plaintiff was awarded costs at Scale B. He is now applying for double costs on the basis that he offered to settle the issues of quantum and liability on January 11, 2016 for the amount of $247,599.80…

[17]         … I agree with the defendants that quantum was very difficult to assess. The issue of causation of the plaintiff’s memory problems, dizziness, unstable walking and mood changes was very much in dispute. The neurologists gave opposing opinions. The neuropsychologist found evidence of deficits which he would have attributed to the Accident but for the evidence he received that the plaintiff did not strike his head at the time of the Accident.

[19]         Although I conclude that the defendants were unrealistic in their assessment of liability, I cannot find that the defendants unreasonably rejected the settlement offer given that there were so many contentious issues to be tried. For that reason, I do not believe that the defendants should be penalized for failure to accept an offer that might later prove to have been reasonable but might just as well have been proven not to be. The offer was not so reasonable that it ought to have been accepted. There were sound reasons for not accepting the offer without the benefit of hindsight. It is my view that this is a case that needed to proceed to trial to sort out all of the unresolved issues.

[20]         I therefore deny the plaintiff’s claim for double costs. The plaintiff will have his costs at Scale B.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/16/23/2016BCSC2355.htm

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