4.29: Costs consequences of formal offer to settle

Case Summary

The Defendant was fully successful at Trial over disputed land valued at $1.2 million. The Defendant had served a Formal Offer to Settle on January 2, 2013, which the Plaintiff did not accept. At Trial, the Defendant fared better than the Formal Offer. In accordance with Rule 4.29, the Defendant sought double Costs. The Plaintiff took no issue with respect to the Defendant’s entitlement to double Costs after January 2, 2013. The issue was that the Defendant sought Costs pursuant to Column 4 of the Tariff, and alternatively an amount of Costs greater than Column 1. The Plaintiff argued that Column 1 should apply because the Action was for specific performance and there was no claim for damages.

The parties agreed that a number of factors should be considered in determining a Costs award, including the degree of success of each party, the importance of the issues, the complexity of the issues and the conduct of the parties that tended to shorten the Trial. While the Action was not particularly complex, Justice Anderson considered the complete success of the Defendant and the importance of the issue to the Defendant, countered against a relatively simple two day Trial with two documents and three witnesses, and held that the Defendant should have its Costs as against the Plaintiff in accordance with Column 2 of Schedule C. In addition, the Defendant was awarded double Costs under Column 2 for any steps taken after January 2, 2013.

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