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

Over the course of a professional negligence Action, the Plaintiff refused to accept either of two Formal Offers, and proceeded through to Summary Trial which culminated in the Court’s dismissal of the Plaintiff’s claim. In reference to the Formal Offers and the Cost consequences prescribed in Rule 4.29, the Defendants sought double Costs.

The Court acknowledged its overriding discretion in awarding Costs, as guided by Rules 10.29, 10.31, and 10.33. Justice Neilson set out to determine whether the Formal Offers were genuine and not merely an attempt to invoke the double Costs rule. The first Formal Offer, which was a discontinuance on a without Costs basis, had been served prior to the Plaintiff’s discovery of the merits of the case, and was not held to have offered a genuine element of compromise. The second Formal Offer, which was a $50,000 settlement, was held to have constituted a genuine offer of compromise. Pursuant to Rule 4.29, the Defendants were awarded double Costs for all steps taken subsequent to the date of service of the second Formal Offer.

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