KITCHING v DEVLIN, 2016 ABQB 212
4.29: Costs consequences of formal offer to settle
5.31: Use of transcript and answers to written questions
5.36: Objection to expert’s report
The Plaintiff was involved in a personal injury Claim and he retained the Defendant lawyer, Mr. Devlin, to represent him. The matter settled for $350,000. Subsequently, the Plaintiff sued Mr. Devlin for negligently handling the Claim, claiming that the settlement was improvident.
Both parties called experts to provide evidence with respect to the standard of care of a personal injury lawyer, and whether that threshold was met by Mr. Devlin. At Trial, the Plaintiff objected to the Defendant’s expert report. Since the objection was not made in accordance with Rule 5.36, the Plaintiff proposed that the Court hear the Defendant’s expert’s evidence subject to a later Ruling on the objection, to which the Court agreed. One of the issues in determining the admissibility of the Defendant’s expert was the use of Discovery transcripts pursuant to Rule 5.31. The Defendant’s expert, Mr. Rodin, based a number of his conclusions on answers given by the Defendant at Questioning. The Plaintiff did not give Mr. Rodin permission to use the transcript for that purpose and argued that the transcript was evidence belonging to him alone, and it was improper for the Defendant’s expert to introduce that evidence at Trial through his report.
Justice Jeffrey stated that, while it was less than ideal that Mr. Rodin relied on the Questioning transcript of Mr. Devlin, this did not render the report inadmissible. The Court found that where references to the transcript were corroborated by other admissible Trial evidence, the opinions associated with that evidence would be admissible. Conversely, if transcript references were not corroborated by admissible evidence, then the associated opinions would not be used by the Court. In determining whether the settlement, and the advice provided to the Plaintiff by Mr. Devlin were reasonable, the Court looked at the statements made by Mr. Devlin to the Plaintiff. Mr. Devlin advised the Plaintiff that he would face significant risk if they went to Trial because he may have to pay double Costs to the opposing party. Jeffrey J. noted that, under Rule 4.29, if a Defendant makes a Formal Offer to Settle that is not accepted, and the Plaintiff’s Trial Judgment exceeds that Offer, then the Plaintiff must pay double the Defendant’s legal Costs incurred after the Offer was made. Since the Defendant had stated that a Formal Offer in the amount $350,000 would be made if the settlement offer was not accepted, Justice Jeffrey held that it was reasonable for Mr. Devlin to advise the Plaintiff he might face serious Cost consequences if he pursued the matter to Trial. In the result, Justice Jeffrey dismissed the Action against Mr. Devlin.View CanLII Details