4.24: Formal offers to settle
4.25: Acceptance of formal offer to settle
4.26: If costs are not dealt with in formal offer to settle
4.27: Status of formal offer to settle and acceptance
4.28: Confidentiality of formal offer to settle
4.29: Costs consequences of formal offer to settle
4.30: When this Division does not apply
5.34: Service of expert’s report
5.35: Sequence of exchange of experts’ reports
14.45: Application to admit new evidence

Case Summary

The Defendant appealed a Trial Decision awarding damages and costs to the Plaintiff. The Action arose from a motor vehicle accident that resulted in multiple injuries to the Plaintiff. The Plaintiff cross-appealed on costs.

One of the grounds of appeal was that the Trial Judge failed to consider relevant evidence by refusing to admit the medical reports of four medical practitioners. The Court of Appeal held that the Defendant failed to serve the medical reports with Form 25, pursuant to Rules 5.34 and 5.35, and the medical practitioners were not called as expert witnesses. Accordingly, this ground of appeal was dismissed.

The Plaintiff sought additional costs on the basis that the damages awarded at Trial were higher than the amount sought in an informal Settlement Offer. The Court of Appeal held that informal offers may have the same costs consequences as formal offers made pursuant to Rules 4.24 to 4.30, and that the Court must be guided by the principles embodied in those Rules. Those principles include the content of the offer and the timing for service, and that an offer to settle must be a genuine offer to settle a claim. The Court of Appeal found that the Plaintiff’s informal offer was not genuine, because it failed to propose settlement for the most contentious aspect of the Claim and was only open for two-and-a-half hours. This ground of appeal was dismissed.

The Plaintiff also sought to admit new evidence, pursuant to Rule 14.45(1). The new evidence was an Affidavit sworn by the Plaintiff that appended excerpts from written submissions on costs, together with evidence relevant to the Trial Judge’s Costs Decision. The Trial Judge had only accepted written submissions on costs and did not accept additional evidence. The Court of Appeal found that the purpose of the Affidavit was to demonstrate factual errors in the Trial Judge’s decision. The Court found that while the Affidavit did not technically include new evidence as it existed at the time of Trial, the Affidavit satisfied the other requirements for the admission of new evidence. In particular, the Affidavit related to a decisive issue, was credible, and could be expected to affect the result.

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