Argument on Costs

Personal Injury

Following the trial of this personal injury case , indexed as 2011 BCSC 944 X. v. Y., the Plaintiff asked the court for increased costs for various steps in the proceeding. The Plaintiff took the position that:

1) liability should have been admitted by the Defendants (represented by Lindsay Kenney LLP lawyer Perminder Tung as well as Jan Lindsay, QC) and

2) the Plaintiff’s application for a sealing/anonymity order should not have been opposed by the Defendants.

He sought to characterize the Defendants’ opposition to that application as reprehensible and deserving of reproof or rebuke. The Plaintiff submitted that all of this increased the time and complexity of the trial and should result in cost penalties against the Defendants. In brief, the court did not agree with the Plaintiff and ordered that the usual costs at Scale B would apply. The court retains a broad discretion to fix costs at different scales for different aspects of a case.

The factors that inform this analysis are:

(a) the length of the trial;

(b) the complexity of the issues involved;

(c) the number and complexity of pre-trial applications;

(d) whether or not the action was hard fought with little or nothing being conceded along the way;

(e) the number and length of Examinations for Discovery;

(f) the number and complexity of Experts’ Reports; and

(g) the extent of the effort required in the collection and proof of facts.

There may also be unusual circumstances that would justify an award of increased costs, including:

(a) misconduct by the unsuccessful litigant;

(b) the serious nature of the allegations;

(c) the complexity or difficulty of the issues in the litigation; and

(d) the importance of the litigation to the parties or to the development of the law.

The court found that none of those circumstances applied in this particular personal injury case. The trial of this case went on for 25 days and there were numerous witnesses, including accident witnesses, expert engineers, friends and family of the Plaintiff, economists and medical experts (orthopaedic surgeons, physiatrists, and functional capacity evaluators). Furthermore, though liability was admitted at the trial stage the Defendants advanced an unsuccessful theory of contributory negligence.

The court went on to state at paragraph 32: “Their position on contributory negligence was not “unsupportable”; it was unsuccessful. In my view this does not constitute “misconduct”; rather this was the Defendants putting their best case forward in an adversarial system…”

Perminder Tung
Partner – Personal Injury and Motor Vehicle Accident Litigation
LK Law – Langley Law Firm