On October 9, 2014, Skolrood J., released Reasons for Judgment on Costs awarding the plaintiffs their costs of the entire proceeding at Scale C, as well as their costs of the costs application.

The plaintiffs in this action, Acciona Lark Joint Venture, represented by David L. Miachika, Grant H. Mayovsky and Christopher J. O'Connor, successfully claimed for recovery of damages to concrete slabs utilized in the construction of a hospital facility. The Court held that the plaintiffs were entitled to recover $8.5 million, finding that certain management fees and additional subcontractor costs were excluded under the insurance policy: 2014 BCSC 1568.

Prior to trial, the parties exchanged a series of formal offers to settle, with the plaintiffs' final offer being $7.75 million plus assessed costs. The trial lasted 21 days, with 17 days devoted to the evidence and 4 days of closing submissions. In this application, the plaintiffs sought costs at Scale C for steps leading up to the date of the offer, and for double costs thereafter.

In support of its application for costs at Scale C, the plaintiffs relied on the following factors: the length of trial, the number and complexity of the factual and legal issues, the extensive pre-trial document discovery, the technical document exhibits entered into evidence, the number of expert reports (8 exchanged, 6 tendered at trial), and the lengthy closing submissions referencing over 90 authorities from multiple jurisdictions. The plaintiffs also noted that the interpretation of a model defects exclusion clause for the first time (LEG 2/96) is a matter of general importance to the construction and insurance industries.

The Court held that in the circumstances of this case, the plaintiffs' were entitled to costs at Scale C. In coming to this finding, the Court emphasised the fact that the case had been one of more than ordinary difficulty, with complex issues and evidence and a complicated contractual analysis component. Further, as noted by the plaintiffs, the outcome had far-reaching significance.

Although the Court found that the offer to settle met the requirements of Rule 9-1, the Court declined awarding double costs following the offer. Skolrood J. found that while the parties were in a position to assess each other's position from a dollars and cents perspective, the respective legal strengths of the positions were not clearly defined. Therefore it was not unreasonable for the defendants to have rejected the offer.

Finally, the Court reviewed the defendants' argument that the plaintiffs should be denied their costs for the days of trial equivalent to those portions of the claim that were ultimately unsuccessful. This argument was rejected, as there was "no question that the plaintiffs were the successful party within the meaning of Rule 14-1(9)." Although the plaintiffs were awarded less than what was claimed, that reason alone was insufficient for reducing costs.

In the result, the plaintiffs were entitled to their costs of the entire proceeding at Scale C, as well as their costs of the application. At the costs hearing, the plaintiffs were represented by David Miachika and Lauren Kristjanson.