Experts who overcharge for
their services, beware: No longer
will the courts rubber stamp disbursements that were normally
recoverable against a losing party.
Yet, the impact of an overcharging expert will be felt by personal injury plaintiffs and their
counsel, not by the expert, since
the retaining lawyer remains
responsible for all disbursements.
While the courts historically
have been assertive in assessing
legal fees and in making sure that
the time spent and the fees
charged by counsel were reasonable, they have been passive in
their approach to assessable disbursements. Presumably, the
courts avoided challenging disbursements since the disbursements claimed were reimbursement for the amounts spent rather
than “profit.” As well, the courts
were reluctant to second-guess a
successful lawyer’s disbursements.
In Hamfler v. 1682787 Ontario
Inc., 2011 ONSC 3331 (S.C.J.), a
May 31, 2011 decision that has
recently gained popularity with
defence counsel, Justice Mark
Edwards of the Ontario Superior
Court of Justice took issue with
the magnitude of disbursements
DARCY
MERKUR
Personal injury
claimants may end
up paying the price
for costs that are no
longer recoverable
from the losing party.
“
Darcy Merkur,
Thomson Rogers
incurred by plaintiff’s counsel in a
personal injury claim where a
jury awarded the plaintiff just
under $200,000 for damages and
where the disbursements claimed
were approximately $100,000.
While stating that the funda-
mental question for the court is
whether the amount claimed in
disbursements is fair and rea-
sonable, Justice Edwards out-
lined some questions that the
court may consider in assessing
disbursements:
n;Did the expert’s evidence make
a contribution to the case, was it
relevant to the issues?
n;Was the evidence of marginal
value or was it crucial to the
trial’s outcome?
n;Was the cost of the expert or
experts disproportionate to the
economic value of the issue at risk?
n Was the expert’s evidence
duplicated by other experts called
by the same party?
n;Was the report of the expert
overkill or did it provide the
court with the necessary tools to
properly conduct its assessment
of a material issue?
Darcy Merkur is a partner at
Thomson Rogers in Toronto,
practising plaintiff’s personal
injury litigation. He is the creator of the Personal Injury Damages Calculator.
Firms that refer traumatic
and complex personal injury
matters to Singer, Kwinter do
so with confidence.
They know their reputations will be
enhanced and their valued relationships
will be protected. Singer, Kwinter is
widely respected by the legal profession
having obtained record-setting awards
and settlements and ground-breaking
decisions that changed the law in Canada.
Alfred M. Kwinter**
William A. McMaster
Jason F. Katz
Jason D. Singer
Shane H. Katz
Ari J. Singer
REFERRAL FEES RESPECTED
*As named by Canadian Lawyer magazine
**Certified by The Law Society as a Specialist in Civil Litigation
CHOSEN
ASONEOF
CANADA’STOP
FIVEPERSONAL
INJURYLAW
FIRMS*
1033 Bay Street, Suite 214, Toronto, ON M5S 3A5 416 961 2882
referrals@singerkwinter.com singerkwinter.com
•
Lawddities
An oddity in Personal Injury Law
Lawddities Stage slippery when wet
After taking a tumble on stage, a male exotic dancer claimed he fell
on slippery body paint left behind by a previous act at Vancouver’s
Naughty But Nice Sex Show five years ago. Randyll Newsham claimed
he tore cartilage in his knee and subsequently sued Canwest Trade
Shows for negligence, according to vancouversun.com.
Much to his “surprise,” a judgment released last week found that he
had previously signed a contract that waived liability along with his
right to sue in the case of injury. Newsham alleged that he wasn’t
aware of the liability waiver on the back of the contract he signed and
no one brought it to his attention, but B.C. Supreme Court Justice
Neill Brown simply didn’t fall for it. —Anum Lateef
Legal Oddities in (Blank) Law
