The ordinary rule of costs is that they are awarded to the successful party in a legal action. The purpose of costs is to offset the lawyer’s fees paid by the successful party. However, in cases where liability is apportioned between the parties, a plaintiff may be entitled to only a portion of his or her costs. This is due to section 3 of the Negligence Act which states that, unless the court directs otherwise, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damages or loss.
In the recently reported case of Gowler v. Ngo, 2011 BCSC 1428, Madame Justice Grey considered that section of the Negligence Act in light of a motor vehicle accident action that had split 50/50 in terms of liability. Affirming that law gives judges discretion in ordering costs, Justice Grey held that the case was one where the full application of s. 3 had the “potential for injustice”, given that the plaintiff was a successful personal injury plaintiff and the defendant had suffered no injury or damage. In the circumstances of the case, where the plaintiff’s costs and expenses of going to trial were $104,000, Justice Grey held that the plaintiff should be awarded 65% of his costs. In doing so she said the following:
 Looking at all the applicable factors, in my view it would be unjust to award the plaintiff only 50 percent of his costs. That is because his award would be so diluted by the need to pay his disbursements that he would not have sufficient recovery…
 Looking at the cases and all the applicable factors, in my view, the appropriate award is that the plaintiff should recover 65 percent of his costs.
…That order would, of course, be subject to the registrar’s assessment of what are the recoverable costs and disbursements, unless counsel agree.
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