In today’s blog, titled Family Law Offers To Settle Costs Explained, Lorne N. MacLean, QC explains how an offer to settle in a BC family law case is a powerful tool to encourage both sides to make and accept reasonable offers to settle their BC Supreme Court family law case. You are well advised to make and consider fair offers. Remember, one sided offers will have no impact at all unless you hit the rare ” home run” in BC family court. Contact us to get your case settled or to increase your chances of victory. We recently obtained a special costs award of over $400,000.
Family Law Offers To Settle Costs Explained
In the recent case of HK v. WK 2018 BCSC 1447a party did not receive double costs but did obtain regular costs as a result of an offer to settle that left parties roughly the same after a trial compared to the offer which was made.
Family Law Offers To Settle Costs Explained – Rules
[16] As explained in Paul v. Pumple, 2013 BCSC 1844, offers to settle made pursuant to Rule 11-1 are only considered after the court has first determined costs pursuant to Rule 16-1(7). Rule 11-1(4) permits the court to consider an offer to settle in exercising its discretion as to costs. That discretion is however restricted and must be exercised within the parameters set out in Rule 11-1(5). The court may consider the factors in Rule 11-1(6) in making an order under subrule (5): see also K.M. v. I.M., 2017 BCSC 716.
Family Law Offers To Settle Costs Explained – Punitive
[17] In Hartshorne, the Court of Appeal outlined the policy reasons behind an award for double costs:
[25] An award of double costs is a punitive measure against a litigant for that party’s failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted. Litigants are to be reminded that costs rules are in place “to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer” [citations omitted]. In this regard, Mr. Justice Frankel’s comments in Giles are apposite:
[74] The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court:
· “[D]eterring frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 at 25 (C.A.), leave ref’d, [1988] S.C.C.A. No. 200
· “[T]o encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”: Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 at para. 28 (C.A.);
· “[E]ncouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases”: Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 at para. 33;
· “[T]o have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”: Catalyst Paper Corporation v. Companhia de Navegaçao Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 at para. 16.
Family Law Offers To Settle Costs Explained -Special Rule Even If No Costs Awarded Initially
[18] The cases are somewhat inconsistent about whether a party who is not otherwise entitled to costs may, nevertheless, be entitled to costs if their offer to settle is better than the result the other party obtained at trial. I am satisfied that double costs cannot be ordered if regular costs are not first awarded, but that a party who was not substantially successful at trial can still recover costs under Rule 11-1(5)(d) if the offer the party made was better than the result the other party obtained at trial: see Paul at para. 29 and Judge v. Judge,2015 BCSC 2240 at para. 14.
[19] In S.M.S. v. D.M.T., 2016 BCSC 339, Justice Savage, when a member of this Court, determined that, considering all issues globally, neither party was entitled to regular costs. He then went on to consider the costs consequences following an offer to settle:
[17] There are some decisions that have held that, having found neither party entitled to costs based on substantial success, there is no jurisdiction to award costs under this rule: See, for example, de Bruijn v. de Bruijn, 2012 BCSC 444 at para. 11.
[18] A contrary view is found in Paul where it was held that an award of costs under this provision is not dependent on a party being substantially successful at trial. Although there was an amendment to Rule 11-1(5)(d) in 2014, that amendment is inconsequential in this analysis.
[19] Since the amendment in 2014, Paul has been widely cited for the proposition that if neither party achieved “substantial success”, the Court may nonetheless make a costs award on the basis of an offer to settle alone: C.H.T. at para. 30; M.S.G. v. S.K.R, 2015 BCSC 913 at para. 26; Walburger at paras. 24-25; Hilborn v. Wright, 2015 BCSC 1175 at para. 22. I agree with that interpretation.
