paperny and rowbotham JJA AND eidsvik j (AD HOC)

4.29: Costs consequences of formal offer to settle

Case Summary

The Plaintiff underwent liposuction surgery performed by the Defendant in 2003. She was not satisfied with the result and in 2004 sued the Defendant and his professional corporation for damages. The Plaintiff was unsuccessful after a two week Trial and had double Costs awarded against her. The Plaintiff appealed, disputing the dismissal of her Action and the Costs awarded against her.

The Court of Appeal dismissed each ground of appeal. With respect to the double Costs award, which the Plaintiff claimed was excessive, the Court noted that Rule 4.29 of the Rules permits the party that makes a Formal Offer to recover double Costs from the date of service of the Formal Offer if that party obtains an Order or Judgment that is more favourable than the Formal Offer. The Court found that there was no reason to deviate from that Rule. The Court noted that since a Formal Offer was properly served on the Plaintiff’s counsel in 2005, a double Costs award was within the Trial Judge’s discretion and was not unreasonable in the circumstances.

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