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Formal and informal offers to settle in Personal Injury Claims

The claimant delivered a formal offer to settle pursuant to Rule 9-1 of the Supreme Court Civil Rules. This was a commercial matter in BC but is relevant to personal injury claims as the same rule is applies to offers to and from ICBC. The relevant portion of the offer stated:

In all of the circumstances, my client is prepared to accept $35,000 in full settlement of his claim. For clarification, this is a net settlement, in the sense that it settles both the claim and the counterclaim.

This is a formal offer to settle made pursuant to Rule 9-1. The Plaintiff, … reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding.(Hanson v. Sharma, 2017 BCSC 2310)

The defendants accepted the informal offer of $30,000 and  the formal offer for $35,000. The informal offer however had been revoked. The judge said this as it related to the law:

[13]  Formal offers to settle and informal offers can co-exist on a parallel track with each other. The formal offer to settle is focused on cost consequences. Formal and informal offers may be outstanding at any given time and a party is at liberty to choose either one to bring the litigation to an end: MacKenzie v. Brooks, 1999 BCCA 623 at paras. 24-27.6 months later the claimant made an informal offer to settle by email agreeing to accept $30,000 to him in full settlement, i.e. of both claims and counterclaims. 

[14] There may be more than one formal offer to settle outstanding at any given time. There is no requirement that the acceptance or withdrawal of a formal offer to settle be in writing or be served. A counter-offer to a formal offer to settle does not revoke the earlier offer (Rule 9-1(8)): Great Wall Construction Ltd. V. Lulu Island Winery Ltd., 2016 BCCA 227 at para. 7.

[15] It is not fatal to the communication of a formal offer if it is not made to the formal address for delivery of the receiving party. If the parties had implicitly agreed to email as an accepted form of written communication, then the communications regarding offers to settle can be made using that method: Great Wall at paras. 8-9. As long as the party has actual notice of the offer, the method of delivery is not restricted to the address for delivery: Gichuru v. Smith, 2013 BCSC 1818 at paras. 52-53.

[16]   A formal offer to settle is open for acceptance until judgment even if a counter-offer has been made: Janzen v. Janzen, 2011 BCSC 1146 at para. 31.à

There was a declaration that the claimant’s formal offer to settle pursuant to Rule 9-1 in the sum of $35,000 was accepted by the defendants.

This case makes it clear that short fuse offers and ongoing formal offers can co-exist together in ICBC personal injury cases.

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

Tags: ICBC settlement offers, offer to settle, Rule 9-1 Offers to Settle, settlement offer

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