Carfra Lawton LLP | Victoria BC

When Counsel pays for an Inflammatory Closing

In Walker v John Doe and Insurance Corporation of British Columbia 2014 BCSC 294 Mr. Justice Voith discussed the effect of plaintiff counsel’s inflammatory closing.

The Judge found that plaintiff counsel’s closing address to the jury in this personal injury trial included disparaging comments about opposing counsel, misrepresentations as to the position of the defendants, misstatements of legal propositions, unsupported allegations that an expert had misrepresented or falsified evidence and an appeal to the emotions of the jury. Justice Voith declared a mistrial.

As a result of the mistrial, the defendant ICBC sought an order that plaintiff’s counsel himself pay special costs. Justice Voith found that although plaintiff’s counsel’s conduct was “wilful and obdurate”, an award of special costs is discretionary and it does not follow as a matter of right even when it is concluded that counsel’s conduct deserves rebuke.

Although special costs were not warranted in this case, Justice Voith found that because of the unusual circumstances the usual costs order would be grossly inadequate, and ordered plaintiff’s counsel himself to pay 1.5 times the normal value of costs to the defendant.

Case summary prepared by: Caroline Alexander