Court awards double costs despite “defective” wording in formal offer

In reasons for judgment released today, the court in Hans v. Volvo Trucks North America Inc., 2017 BCSC 555, awarded both plaintiffs double costs for the trial following the plaintiffs’ formal offer to settle.  The defence argued that double costs should not be awarded as the formal offer was defective, in that it purported to offer to settle the claims of only one plaintiff, rather than both.  Mr. Justice Davies rejected the defence arguments and wrote:

[55]         The Volvo defendants assert that other factors exist which should result in denial of the plaintiffs’ application for double costs. The three factors relied upon are:

  1. A defect in both offers to settle in that they are made by an unspecified single plaintiff rather than both plaintiffs;

...   

[56]         Concerning the first factor the Volvo defendants submit that both plaintiffs were advancing significant claims so that it could not be objectively determined whether they intended to settle Mr. Hans’ claims, Mrs. Hans’ claims or the claims of both.

...

[64]         The reality of this litigation, at all times well known to the Volvo defendants was that liability would have to be established before either plaintiff would be entitled to any recovery. Similarly it was well known that the plaintiffs’ claims for loss of past and future income earning capacity were inter-dependent and based upon the extent of the psychological injuries suffered by Mr. Hans. This was not a case in which there could have been severance of the claims of the individual plaintiffs.

[65]         While the offers to settle were potentially ambiguous, it is, in my view obvious that the intent of both offers was to settle the entirety of the action and the claims of both plaintiffs. I am also satisfied that the Volvo defendants appreciated that fact and never had any intention of accepting either offer. The failure of the Volvo defendants to seek any clarification reinforces my view that at all times they intended to pursue an “all or nothing” approach to the litigation.

...

[69]         The plaintiffs are entitled to double costs from the Volvo defendants after the plaintiffs’ first offer to settle for $3 million dated February 2, 2015, which ought to reasonably have been accepted before the second offer to settle for $3.7 million was made on August 21, 2015. The plaintiffs are also entitled to double costs from and after August 21, 2015, by reason of their second offer to settle which similarly ought to reasonably have been accepted.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0555.htm#_Toc478719343