Most British Columbians who pursue their personal injury claims through a lawsuit will do so with the assistance of legal counsel. Legal fees are typically very expensive. The vast majority of injured plaintiffs will hire a lawyer on a contingency fee basis, meaning that they will be paid a percentage of the total settlement or judgment, and usually the lawyer doesn’t get paid until the case is over. As a personal injury lawyer, clients will often ask me, “Can I sue ICBC or the other party for all of my legal costs?” My answer to this question is as follows: not really.
It is quite unusual for a plaintiff in a personal injury lawsuit to recover all of their legal costs. If your case is brought in Small Claims Court (which is for cases under $25,000), you can generally only recover your out of pocket expenses and filing fees. If your case is brought in Supreme Court, and you are successful, you will generally be entitled to what are commonly called “court costs”, but court costs are not the full cost of your legal bills. Instead they are typically calculated according to a table that is set out in Appendix B of the Supreme Court Civil Rules. Depending on the number of steps you took in the lawsuit, and the complexity of the matter, you will be awarded a number of “units” as set out in the table. The number of units is then multiplied by a dollar amount set out elsewhere (the default being $110 per unit). You are also able to recover the full amount of any reasonable disbursements that you incurred.
However, there are many instances where you may recover less court costs. For example, costs will generally not be awarded for unreasonable or unnecessary steps taken in the litigation, or if the other party was put to unnecessary expense. Ultimately, cost awards are in the discretion of the court, and in some cases, even a successful plaintiff can recover little or no costs at all. if your case is being brought as a “fast track” action (which can apply to cases under $100,000), then your costs will be set as a fixed lump sum.
Finally, the Supreme Court costs rules contain a built-in mechanism to encourage settlement and to prevent parties from putting the other side to needless expense. Any party to the litigation can make a formal offer to settle. At the end of the trial, if the other side failed to beat the offer, the offer can be brought to the attention of the court and be considered in the costs award. Frequently this is used to award “double costs” against the losing party. The full range of cost remedies that a court can consider when a party fails to beat the formal offer are set out in Rule 9-1(5) of the Supreme Court Civil Rules.