Skip to content

Offers To Settle

Offers to settleOffers to Settle are a well entrenched litigation tool that is used to make offers to the opposing side, that if rejected, and the winning party “beats” the offer, then the winning party is entitled to increased costs to be awarded to them from the losing party, after the date of the offer.

Rule 37B used to govern offers to settle, but while the wording is the same, it is now Rule 9-1 (1) c and it states:

The … [party(ies)] …, … [name(s) of party(ies)] …, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding.”

Case law has held that to be a valid offer to settle wiyjin the Rules of Court, then the offer must use the wording of the section, including the right to bring the offer to the attention of the trial Judge.

Roach v. Dutra (2010), 5 B.C.L.R. (5th) 95 (C.A.); Wormell v. Hagen, [2009] B.C.J. No. 2236; and Eigeard v. Muench, [2010] B.C.J. No. 1229, are the cases on point

In Roach, Prowse J.A. on behalf of the Court undertook an extensive review of the rule dealing with costs and concluded:

… I am also of the view that the wording of the offer must be substantially compliant with the wording of subrule 1(c)(iii) such that no reasonable person could be misled as to the intent of the offer or the fact that it was an offer within the meaning of Rule 37B. In other words, the offer must be in writing, the wording must make it clear what party is making the offer and to whom it is made, and it must include the fact that the party making the offer is reserving the right to bring the offer to the attention of the court in relation to costs after judgment on all other issues in the proceeding. (at para. 52)

[9] While the decision in Roach, supra, dealt with the former Rule 37B(1)(c)(iii), that rule is identical to the present Rule 9‑1(1)(c)(iii) and, accordingly, I am bound by the decision reached by the Court in Roach.

[10] In Wormell, Goepel J. also dealt with an offer which did not contain the wording required under Rule 37B(1)(c)(iii). In adopting the decision of Powers J. in Lau v. Rai (2009), 72 C.P.C. (6th) 112 (B.C.S.C.) to come to the conclusion that the offer did not constitute an “offer to settle” as defined under the Rule, Goepel J. concluded that the third party’s application for double costs should be dismissed. In Eigeard, Hyslop J. was of a similar opinion and concluded: “There is nothing in the offer of the plaintiff to suggest that the plaintiff intends to bring the offer to the trial judge’s attention as it relates to costs.” (at para. 25).

The party receiving an “offer to settle” is entitled to receive the “warning” that the offer will be brought to the attention of the Court. The possibility that costs will be awarded provides an additional incentive for the party receiving an offer to settle to consider the offer seriously. There should be no doubt that costs may be awarded whether or not the party receiving the offer to settle is ultimately successful.

– See more at: http://www.disinherited.com/blog/offers-settle#sthash.WKEcN9tM.dpufaOffers to Settle are a well entrenched litigation tool that is used to make offers to the opposing side, that if rejected, and the winning party “beats” the offer, then the winning party is entitled to increased costs to be awarded to them from the losing party, after the date of the offer.

Rule 37B used to govern offers to settle, but while the wording is the same, it is now Rule 9-1 (1) c and it states:

The … [party(ies)] …, … [name(s) of party(ies)] …, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding.”

Case law has held that to be a valid offer to settle wiyjin the Rules of Court, then the offer must use the wording of the section, including the right to bring the offer to the attention of the trial Judge.

Roach v. Dutra (2010), 5 B.C.L.R. (5th) 95 (C.A.); Wormell v. Hagen, [2009] B.C.J. No. 2236; and Eigeard v. Muench, [2010] B.C.J. No. 1229, are the cases on point

In Roach, Prowse J.A. on behalf of the Court undertook an extensive review of the rule dealing with costs and concluded:

… I am also of the view that the wording of the offer must be substantially compliant with the wording of subrule 1(c)(iii) such that no reasonable person could be misled as to the intent of the offer or the fact that it was an offer within the meaning of Rule 37B. In other words, the offer must be in writing, the wording must make it clear what party is making the offer and to whom it is made, and it must include the fact that the party making the offer is reserving the right to bring the offer to the attention of the court in relation to costs after judgment on all other issues in the proceeding. (at para. 52)

[9] While the decision in Roach, supra, dealt with the former Rule 37B(1)(c)(iii), that rule is identical to the present Rule 9‑1(1)(c)(iii) and, accordingly, I am bound by the decision reached by the Court in Roach.

[10] In Wormell, Goepel J. also dealt with an offer which did not contain the wording required under Rule 37B(1)(c)(iii). In adopting the decision of Powers J. in Lau v. Rai (2009), 72 C.P.C. (6th) 112 (B.C.S.C.) to come to the conclusion that the offer did not constitute an “offer to settle” as defined under the Rule, Goepel J. concluded that the third party’s application for double costs should be dismissed. In Eigeard, Hyslop J. was of a similar opinion and concluded: “There is nothing in the offer of the plaintiff to suggest that the plaintiff intends to bring the offer to the trial judge’s attention as it relates to costs.” (at para. 25).

The party receiving an “offer to settle” is entitled to receive the “warning” that the offer will be brought to the attention of the Court. The possibility that costs will be awarded provides an additional incentive for the party receiving an offer to settle to consider the offer seriously. There should be no doubt that costs may be awarded whether or not the party receiving the offer to settle is ultimately successful.

Categories

Related Posts