LDW v KDM, 2011 ABQB 800


4.24: Formal offers to settle
4.29: Costs consequences of formal offer to settle
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

The Parties were involved in high conflict family litigation that spanned over six and a half years, culminating in a four week Trial. The Applicant, KDM, who was largely successful at Trial, sought Costs for, inter alia, a number of failed Judicial Dispute Resolutions, a Case Management intervention and Double Costs on the basis of a Pre-Trial Settlement Offer.

Jeffrey J. rejected KDM’s claim for Costs for the failed Judicial Dispute Resolutions and Case Management intervention. Rule 10.31(2)(c) provides that unless a Party engages in serious misconduct in such a proceeding, no Costs shall be recovered. Jeffrey J. held that unreasonably declining to settle a matter during Settlement Conferences and Judicial Dispute Resolutions did not equate to serious misconduct under the Rules.

Jeffrey J. also rejected KDM’s application for Double Costs, holding that the Pre-Trial Settlement Offer did not satisfy the requirements of Rule 4.24(2). The Settlement Offer was not in Form 22 and it did not state that it was to be treated as a “formal offer” proffered for the purposes of arguing for greater Costs after Trial. Moreover, the Settlement Offer did not notify LDW of the Costs consequences specified in Rule 4.29. Not only was such notice mandatory, it was crucial because LDW was representing herself and could not be expected to understand the significance of a Formal Settlement Offer prior to Trial for Costs purposes.

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