Carfra Lawton LLP | Victoria BC

Evidence required to set-off costs after acceptance of offer to settle

In Johnstone v. Haynes, 2015 BCSC 770 the defendants sought to enforce costs consequences after the plaintiff accepted an offer to settle, in a fast track action, 11 days after the offer was issued, and 3 days before trial. The defendants sought costs from the date that the offer was delivered, in accordance with the terms of the offer.

The plaintiff argued he ought to have an opportunity to consider the offer before accepting it and therefore the cost consequences set out in the offer to settle should not be strictly applied. He sought to recover the entirety of his costs, without a set-off.

Master Bouck rejected the plaintiff’s argument, holding that a registrar does not have jurisdiction to look beyond the terms of an accepted offer to settle and has no jurisdiction to vary any terms of the offer to settle as to costs. However, because the defendants did not present a bill of costs or any evidence of steps taken after delivery of the offer to settle the registrar was entitled to award the plaintiff his full trial preparation costs, as there was no set-off to apply against the plaintiff’s claim.

Master Bouck did reduce the plaintiff’s disbursements claim by $332.75, however, which had been identified by plaintiff’s counsel at the assessment, as photocopying charges incurred after delivery of the offer to settle.

Case summary by: Caroline Alexander