PRACTICE |
Costs |
Gravel and Lake Services Ltd. v. Lake Charles (The)
T-1063-96
2002 FCT 271, Hargrave P.
8/3/02
12 pp.
Motion for reconsideration of cost portion of Court's judgment dated May 11, 2001, on ground Court did not consider cost award in light of offer of settlement made, of which Court unaware--By operation of r. 420(1), if judgment rendered more favourable than terms of offer to settle, plaintiff shall be entitled to double party-and-party costs, excluding disbursements, after date of service of offer--Main question to be decided appropriate reference date to compare value of plaintiff's offer to settle to value of judgment rendered by Court--Plaintiff's offer to settle characterized in case law as escalating offer to settle because offer grows in monetary terms as plaintiff incurs more legal expenses--Judgment awarding plaintiff amount of $133,384 plus pre-judgment interest--Two bases for refusing, on merits, variation to Court's award on costs which is no costs awarded to either side as success equally divided--First, proper date of reference to value plaintiff's offer date of Court's judgment--Offer to settle not more favourable than judgment awarded--Second, r. 420(1) provides Court with discretion to override provision of entitlement to double costs after date of service of offer to settle more favourable than judgment--Court should discard offer to settle as made late, difficult to value, came at eve of trial--Date of Court's judgment appropriate date to measure value of plaintiff's offer to settle as reflects what plaintiff intended, takes into account all terms of offer--Offer to settle must be clear, unequivocal in order to attract consequences of r. 420--Three F.C.T.D. cases took into account lateness of offer to settle in reducing impact of r. 420--Motion dismissed--Federal Court Rules, 1998, SOR/98-106, r. 420.