The Least Expensive Approach to Litigation & Fast Track Costs

In the recently published decision of Gill v. Widjaja, 2011 BCSC 951, Master Baker considered the cost implications of parties settling a personal injury claim for less than $100,000. The Master also considered various costs relating to the proceedings. Of note, the Master held that parties to a legal action should use the least expensive approach in the course of the proceedings.

A. Cost of using an Agent for Filing

One issue was whether the plaintiff would recover amounts paid to an agent to file court papers. The defendant’s lawyer argued that the plaintiff should be limited to costs for the cheaper method of filing papers electronically. Master Baker agreed with the defendant’s argument on that point and said the following:

[7] Routine registry filings. Ms. Tonge argues that with electronic filing now available and generally in use the good old fashioned process by which court agents take documents physically to the registry for filing should be reviewed. Mr. Cope’s office does not file electronically. Mr. Cope’s response is that, while change has come and electronic filing may be a good thing, it’s difficult to change. I understand that, but I agree that the thrust of the new Rules and Rule 1-3(1) should operate and apply to require, all other things being equal, the least expensive approach to litigation. This means that counsel and client may choose another, more costly, process if they wish, but they will have to justify it. I calculate that this would apply for five filings in this case, so that the charge of $27.65 is reduced to $7.00, or an overall reduction of $103.25.
[8]Dye & Durham charge for briefs. The court agent was sent to court to copy two other unrelated settlement conference briefs. Mr. Cope was blunt and direct on this point: he had not attended a judicial settlement conference in years, he said, so he needed to check other briefs as precedents. A wise step, no doubt, but one that I would attribute to counsel’s ongoing education, and not to the costs attributable to the defendant. The cost ($17.92) is disallowed.

[Emphasis added]

B. Photocopying

On the issue of the cost of photocopies (usually charged at 25 cents per copy) Master Baker again applied the least expensive approach and disallowed those costs on the basis that modern technology makes most photocopying unnecessary:

[12] Photocopies are a routine expense on lists of disbursements. Rule 14-1, however, makes no specific allowance for photocopies, or any other disbursement for that matter. It simply directs that the registrar shall allow disbursements “…which have been necessarily or properly incurred in the conduct of the proceeding…”. And, of course, the Registrar has set the allowable cost per copy from time to time. That cost is currently $0.25 per copy. But fixing an amount in that way no more mandates that every (or, perhaps, any) copy be allowed any more than the BC Medical Association’s tariff for medical reports or court attendance binds doctors to those amounts. In the modern world documents are routinely created in digital form. Indeed, some never leave that form. They are exchanged, distributed, copied and stored with practically instantaneous speed. The value and advantages in using digital formats has already been noted twice in these reasons, once by me (para. 7 above, re: electronic filing) and once by Mr. Cope (para. 10 above re: a paperless office).

[13] Various expenses and costs involved in the conduct of a lawsuit have been categorized as overhead and disallowed as disbursements on specific files. That has been the case with computer-assisted legal research, for example, or cell phone charges, office supplies, cables, and dvds. I cannot see that photocopy costs in a modern office are any different. The technology is so ubiquitous that the cost is virtually universal, on a par with the cost of heat and light, for example. Rule 14-1(2)(b) directs that the registrar, in assessing costs, “consider Rule 1-3”. I take that to mean that all counsel must conduct a case in the most reasonably efficient means possible, always considering the exigencies of the particular case. When alternative technologies are available that can virtually eliminate the cost of photocopying, Rule 1-3 must come into play. For that reason and the reason that there are no specifics offered establishing the need or use of the copies, I disallow the photocopying expense.

C. Fast Track Costs

With respect to the legal costs of the proceedings, counsel agreed that the starting sum should be $8,000 and that, since no trial proceeded, there should be a reduction of one day’s costs

$1,500. After that they disagreed. The plaintiff’s lawyer argued that one-half day’s trial costs should be added on for trial preparation. The defendant’s lawyer, argued that there should be a further deduction of $2,000. Master baker found that there was no basis for any intervention to add or deduct additional costs. He said the following on this point:

[17] I start with the assumption that, once the portion attributed to the first day of trial is deducted, the balance is allocated to preparation. It would take compelling facts and circumstances to depart from that simple principle. And that simple principle should be applied when one recalls that the costs provisions of Rule 15-1 are intended to be summary in nature and to avoid assessments such as this. Counsel referred me to other authorities considering and, in effect, parsing pre-trial proceedings, but those cases seem to apply to situations where Rule 37 or 37B offers were made and either accepted or refused. In those cases, of course, it became important to mark the point in the proceedings when the offer was made and to then invoke the Rules’ effects on costs for the proceedings thereafter. In such a case it would require that some assessment be made of the degree of preparation done at the point of the offer. This is not that case.

[18] Mr. Cope argued that Ms. Gill was due some allowance for preparation, yet the tariff items in his bill included Item 17 “All process and correspondence associated with retaining and consulting all experts…” and Item 18 “All process and correspondence associated with contacting, interviewing and issuing subpoenas to all witnesses”. While the items do not apply per se, as Rule 15-1(15)’s omnibus cap does instead, Mr. Cope obviously considered all of that to include most, if not all, of the usual allowable stages of preparation. His draft in the form presented is a tacit admission of that. Moreover, as Ms. Tonge pointed out, there is no evidence of any unusual preparation having occurred before the offer was made and accepted.

[19] Similarly, there is no basis to take the reverse view and conclude that, given the matter settled seven weeks before trial, that no, or substantially no, preparation would have taken place. Quite the contrary: it is clear that Mr. Cope took the usual steps to obtain and organize the evidence he would need to that point and that those preparations were sufficient that he and Ms. Gill were prepared to settle.

[20] In the end there is no basis for any intervention by me, either to deduct or add in, respecting preparation costs. The only deduction from the fast track capped cost will be $1,500.00 representing the first day of trial.

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