14 May What happens if my case goes to trial and the outcome is worse than if I would have accepted ICBC’s settlement offer?
In most instances, there are settlement negotiations before a case goes to trial. Those negotiations can be informal and/or formal. The difference between an informal offer and a formal offer is whether or not they can be brought to the trial judge’s attention after trial.
Informal negotiations are not generally brought to the trial judge’s attention. Formal negotiations may be brought to the trial judge’s attention. For example, if a party makes an offer prior to the trial and the judge makes an award that is less than the offer after the trial, then the formal offer could be brought to the trial judge’s attention. The judge will then consider whether or not to award the successful party double costs. The purpose of this type of award is to encourage parties to accept reasonable settlement offers.
In Johnson v. Jamieson, 2015 BCSC 648, the Defendants denied liability. They offered to waive their right to claim costs and disbursements in exchange for the Plaintiff agreeing to dismiss the lawsuit. The Plaintiff rejected the offer and proceeded to trial. The judge dismissed the Plaintiff’s claim and awarded the Defendants costs and disbursements.
After trial, the Defendants applied to the trial judge for double costs. The trial judge noted that the Defendant had the Plaintiff’s witness statement and had conducted an Examination for Discovery. The Plaintiff’s only witness was his girlfriend and the trial judge noted he should have been aware of the reliability and shortcomings in her evidence. Overall, the trial judge indicated that:
 The weaknesses of the plaintiff’s case on liability were quite apparent, his testimony rife with inconsistencies and improbabilities. I agree with the defendants that the plaintiff should have readily recognized the high risk of dismissal that he faced. I note the offer was open for acceptance any time before 4:00 p.m. on the last business day before commencement of the first day of trial. The long period between the tender of the offer and trial afforded ample time to consider the offer, which I find was one reasonably capable of acceptance.
As a result, the judge exercised his discretion to award the Defendants double costs.
To put this into perspective, if the Plaintiff owed the Defendant $11,000 in costs, then this decision would mean he now owed the Defendant $22,000 in costs. Going to trial is a very significant decision, so you should contact a lawyer to help you make this decision.