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Lawyers Behaving Badly- The Future with Case Planning Conferences


Personal injury lawyers in British Columbia are often faced with having to attend one or more Case Planning Conferences (“CPC”) at the request of ICBC or other defendants in the normal course of litigation. These closed court CPC’s have a status of their own and, as recently revealed, are under veil of secrecy.
The court denied this injury claimant’s request for a CPC transcript, reinforcing the new common law rule that a party cannot bring to light the the conduct of lawyers at a CPC: Darel v. Samy,2014 BCSC 904. This relatively new rule appears to undermine a claimants ability to obtain the evidence of behaviour of lawyers in order to prove additional costs or potentially punitive damages.
The injury claimant sought a partial transcript of Master Bouck’s “comments, or a short set of reasons” for the intended purpose of bringing the “conduct” of the defendants “to light”. The defendants opposed the release of the transcript and relied on the decision of Parti v. Pokorny, 2011 BCSC 955.
Amazingly, in the Parti case it was ICBC that wanted the transcript of the CPC and other CPC transcripts from other cases for “educational purposes”, and to benefit ICBC adjusters and employees, and for the future guidance of lawyers hired by ICBC. It also was contended that the transcript could have some value as a precedent, in the sense that it could be used as an example and relied upon at other CPCs  The court failed to see how a bare transcript would have any appreciable value or utility as a precedent.
The injury claimant’s request for release of the transcript was denied for the reasons articulated in Parti v. Pokorny

Firstly, a transcript is not required to resolve any dispute about the terms of the case plan order. Second, there is no precedential value in any of the terms of the order. Third, the court does not issue reasons for judgment at the request of a party. And finally, the comments of a presider are not rulings or reasons.

CPC rules stipulate that both litigation management matters and settlement matters can be discussed at the CPC, and may be the subject of a court order. The purpose of R. 5-2(7) is to foster full and candid discussions as to all aspects of the case.
In the Shen v. Klassen, 2011 BCSC 234, Judge Beames denied an appeal preventing the disclosure of a CPC transcript. Judge Beames quoted the November 2006 publication of Civil Justice Reform Working Group’s report to the B.C. Justice Review Task Force entitled Effective and Affordable Civil Justice :

The second recommendation is that parties to Supreme Court actions attend a case planning conference before they engage the system beyond initiating and responding to a claim. The conference will address:

•           settlement possibilities and processes

•           narrowing of the issues

•           directions for discovery and experts

•           milestones to be accomplished

•           deadlines to be met, and

•           setting of the date and length of trial.

With respect to the issue of confidentiality in CPCs, the Working Group stated at p. 16 of the report:

In order to encourage full and candid discussion, the CPC will be a “confidential” process and discussions will be considered to be “without prejudice” and protected from disclosure. [Footnote 35: If CPCs are recorded, the tape or digital record will not be available to a party or counsel without an order of the court.] However, given that the CPC also incorporates management and planning functions, any applications made by a party during the CPC and discussions specifically related to an order made as a result of a CPC should be stated to be “on the record.” Only those portions of the tap or digital recording stated to be “on the record” may be ordered to be available to the parties and counsel in the event of an appeal.

The CPC rules do not expressly direct the court to explore settlement “possibilities”. However, the court has used the fact that exploration of settlement possibilities may well take place at CPCs as a basis for keeping them secret. As judge Breame points out, “Even where the parties do not enter into settlement discussions, the parties may, with the court’s assistance, have a “full and candid” exploration of the issues..”

Although the spirit of the new Rules is to encourage the settlement of claims and to narrow the issues, reality is that this rule does not embolden injury claimants to discuss settlement offers at a CPC. We have heard no recent support within the legal community that CPCs encourage settlement.

The CPC rules are lopsided, requiring Plaintiff’s produce a detailed Trial Brief at the simple request of the defendant. From my experience this has actually encouraged more steps litigation and less in settlement.

After four years with this new rule the Case Planning Conference procedure can be considered a failure, producing nothing but another day in court, more paper, and a private court process for insurers and their lawyers, if indeed there has been more litigation than settlement.

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness,B.A. LL.B.
 

Tags: Case Planning Conference, ICBC, ICBC settlement offers, negotiation techniques, New Civil Court Rules, Rule 5-2(7)- Case Planning Conference Transcript

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