In a legal action in which complex injuries are involved, it is often necessary to seek multiple expert opinions from various specialties to assist with seeking opinions on the diagnosis and prognosis of the injured Plaintiff.
A recent case in Tabah v. Bress, 2018 BCSC 185 reviews the legal principles that are to be considered in assessment of disbursements.
The Plaintiff in this case sought medical opinions from a total of 19 experts, producing a total of 39 reports. Opposing counsel is challenging the disbursements on the basis that they were out of proportion (Rule 1-3) and not proper or necessary. The argument raised by the defence was that the Plaintiff’s medical condition was not overly complex and the Plaintiff was young, fit and had no pre-existing conditions. However, it was noted that this case settled for $1,350,000. Plus taxable costs and disbursements. The fact that this matter settled in this range was indicative of the fact that the injury was complex. In fact, the injury was quite unique. A metal fragment penetrated right through the Plaintiff’s shoulder and punctured a hole in his scapula. Over time, the Plaintiff’s injury worsened.
Opposing counsel was in agreement with 12 of the retained experts, but challenged some of their reports, in addition to the remaining experts and their reports.
The principles and the considerations of the court in assessing whether disbursements are necessarily and properly incurred are outlined in a well known decision Schroeder v. McGivern, 2015 BCSC 362:
10 Supreme Court Civil Rule 14-1(5) provides:
(5) When assessing costs under subrule (2) or (3) of this rule, a registrar must
(a) determine which disbursements have been necessarily or properly incurred in the conduct of the proceeding, and
(b) allow a reasonable amount for those disbursements.
11 There are a number of principles to be considered on an assessment of disbursements. Those applicable principles were summarized in Turner v. Whittaker, 2013 BCSC 712 at para. 5, wherein Master McNaughton stated:
 Counsel were also able to agree on the following legal principles which are applicable on an assessment of disbursements:
- Rule 14-1(5) requires an assessing officer to determine which disbursements were necessarily or properly incurred in the conduct of a proceeding and to allow a reasonable amount for those disbursements.
- The consideration of whether a disbursement was necessarily or properly incurred is case-and circumstance-specific and must take into account proportionality under Rule 1-3. (Fairchild v. British Columbia (Vancouver Coastal Health Authority), 2012 BCSC 1207).
- The time for assessing whether a disbursement was necessarily or properly incurred is when the disbursement was incurred not with the benefit of hindsight. (Van Daele v. Van Daele, 56 B.C.L.R. 176 (SC) rev’d 56 B.C.L.R. 178 at para. 4 (CA))
- A necessary disbursement is one which is essential to conduct litigation; a proper one is one which is not necessary but is reasonably incurred for the purposes of the proceeding. (McKenzie v. Darke, 2003 BCSC 138, para. 17-18)
- The role of an assessing officer is not to second guess a competent counsel doing a competent job solely because other counsel might have handled the matter differently. (McKenzie v. Darke, 2003 BCSC 138, para. 21).
12 To these principles, I would add those in Holzapfel v. Matheusik (1987), 14 B.C.L.R. (2d) 135, which are summarized in Cloutier v. Wong, (1992) 12 C.P.C. (3d) 169 where the Court stated at para. 5:
5 In Holzapfel v. Matheusik (1987), 14 B.C.L.R. (2d) 135, the Court of Appeal approved the following principles set out in the authorities:
- The onus of proof rests on the party submitting the bill to establish affirmatively the necessity or reasonableness of the charges he claims as disbursements (Hall v. Strocel (1983), 34 C.P.C. 170 (B.C.S.C.).
- The solicitor responsible for the preparation of the case should give evidence, which may be by affidavit, verifying that the work was necessary for the full and proper presentation of the case and that the fees charged for the work were reasonable in the circumstances (Berite v. Schuette (1980), 17 C.P.C. 259 (B.C.S.C.).
- If the expert’s bill contains less than a reasonably detailed outline of the work he performed and the hours he devoted to his retainer, an affidavit sworn by the expert may be required (Berite v. Schuette (1980), 17 C.P.C. 259 (B.C.S.C.).
- The affidavit of verification does not bind the assessment officer but he should consider it carefully and weigh it against the other evidence (Bell v. Fantini; Fasciana v. C.N.R. (1981), 32 B.C.L.R. 322 (B.C.S.C.)).
13 In Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.) at para. 23, the Court stated:
- I consider that Rule 57(4) entitles the Registrar to exercise a wide discretion to disallow disbursements in whole or in part where the disbursements appear to him to have been incurred or increased through extravagance, negligence or mistake or by payment of unjustified charges or expenses. The Registrar must consider all the circumstances of each case and determine whether the disbursements were reasonably incurred and were justified. He must be careful to balance his duty to disallow expenses incurred due to negligence or mistake, or which are extravagant, with his duty to recognize that a carefully prepared case requires that counsel use care in the choice of expert witnesses and examine all sources of information and possible evidence which may be of advantage to his client.
On assessment of whether a disbursement is deemed necessary and proper, it must be noted that “the onus of proving liability and quantum in the proceeding rests upon the shoulders of plaintiff’s counsel. Further, to properly advise the plaintiff with respect to the range of possible outcomes for the case and to consider the reasonableness of settlement offers, plaintiff’s counsel is required to determine the extent of the plaintiff’s injuries and to understand the cause of them.” See Turner v. Whittaker, supra, at para. 51.
The court made it clear that a disbursement should not be disallowed on the basis that medical opinions overlap. Especially when dealing with a complex case, some overlap between medical opinions is going to be inevitable.
The Court also stated that if there is going to be costs from multiple experts within the same specialty, there must be a clear explanation as to why such experts were deemed necessary and proper in all the circumstances. If an adequate explanation is not provided, the reports of those experts will likely be disallowed on the basis that they were an “extravagance” or “excessive zeal”.
The Court concluded that 4 of the experts and their reports were disallowed as they were not proper or necessary.
All other experts and their reports were allowed. The Court stated:
Necessary in the sense that the reports were essential to the conduct of litigation, or proper in the sense that they may not have been necessary but were reasonably incurred for the purpose of the proceeding. See McKenzie v. Darke, 2003 BCSC 138 of para. 18.
I also conclude that the amounts charged by the various experts retained by the plaintiff, where allowed, were reasonable in the context of Supreme Court Civil Rule 14-1 (5)(b) and there is no basis to interfere with the amounts charged.
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