Offers to settle & Summary Judgement applications
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This factsheet describes two procedures that parties to a lawsuit may use to attempt to end a lawsuit before trial. Part I deals with how to make a formal offer to settle a lawsuit. Part II describes how to apply to a Judge to make a Summary Judgment Application. A successful Summary Judgment Application will end a lawsuit when the claim made by a Claimant has no chance in law of succeeding, or the defence put forward by a Defendant is totally without any basis in law.
OFFERS TO SETTLE
Making an Offer to settle is a tactic that a Claimant or Defendant can use to encourage settlement of a lawsuit without the need to go to trial. The tactic is set out in Rule 10.1 of the Small Claims Court rules. To make an offer to settle, an Offer to Settle form is used.
Click here to view a sample of a completed Offer to Settle form.
WHY USE THIS TACTIC
There are two reasons a Claimant or Defendant might want to use this tactic. First, the lawsuit might actually be settled by the offer being accepted. Second, if the offer is not accepted, a Judge may in certain circumstances impose a penalty on the party that refused to accept the offer.
Those circumstances are as follows: If an Offer to Settle form is given to the other party within 30 days after a Settlement Conference and:
- the offer is refused; and
- a trial is held; and
- The amount awarded at trial is equal to, or higher than, the amount offered in an Offer to Settle given by the Claimant to the Defendant, or the amount awarded at trial is equal to, or lower than, the amount offered in an Offer to Settle given by the Defendant to the Claimant;
then a Judge could impose a penalty on the party that refused to accept the offer.
HOW BIG A PENALTY COULD A JUDGE IMPOSE
A Judge could impose a penalty of up to 20% of the amount of the offer to settle.
In deciding exactly how much of a penalty to impose a Judge will consider three things. These include:
- When the offer to settle was made;
- The difference between the amount offered in the Offer to Settle and the amount awarded at trial; and
- How necessary it was to have a trial in order to decide which witnesses were telling the truth, or what law should be applied by a Judge to decide the case.
WHEN CAN AN OFFER TO SETTLE BE MADE
Parties to a lawsuit can attempt to negotiate a settlement of the lawsuit anytime before a Judge makes a decision at trial. However, if a Claimant or Defendant wants to use the procedure set out in Rule 10.1, an Offer to Settle form can be served on the opposing party up to 30 days after a Settlement Conference without getting special permission from a Judge. To serve an Offer to Settle on the opposite party more than 30 days after a Settlement Conference does require a Judge’s permission. But why bother. Rule 10.1 says a Judge can only impose a penalty if the Offer to Settle is served within 30 days of the conclusion of the Settlement Conference.
HOW TO MAKE AN OFFER TO SETTLE
The first step is to complete an Offer to Settle form. If there is more than one Claimant, a Defendant can make a separate offer to settle to each Claimant. If there is more than one Defendant, the Defendants must all act together when making an offer to settle, so they will all be bound by it if the offer is accepted.
Next, the form must be served on the opposite party.
The form can be given to the opposite party, or it can be mailed by ordinary mail or registered mail. For more information about serving documents, see Factsheet 6.
HOW TO ACCEPT AN OFFER TO SETTLE
A party who wants to accept an offer should:
- Complete an Acceptance of Offer form.
- Serve the Acceptance of Offer form on the opposite party. For information on service, see Factsheet 6.
- The Acceptance of Offer should be served within 28 days of receipt of the Offer to Settle. This means that if an Acceptance of Offer form is to be served by mail it should be sent no later than 13 days after receipt of the Offer to Settle, because service by mail is deemed by Rule 18(13) of the Small Claims Court rules to take 14 days.
HOW DOES AN OFFER TO SETTLE BECOME AN ORDER OF THE COURT
The party who receives an Acceptance of an Offer form can file both the Offer to Settle form and Acceptance of Offer form at the Small Claims Court Registry. When filed, the Acceptance is deemed to be a Payment Order. A Payment Order can then enforced using a number of procedures, which are described in Factsheet 15.
SUMMARY JUDGMENT APPLICATIONS
A Summary Judgment Application can be used in two circumstances:
- Where a Claimant has filed a claim, but the claim has absolutely no merit in law; and
- Where a Defendant has filed a Reply but really has absolutely no legal defence to the lawsuit.
In both cases the result of a successful application will be the end of the lawsuit. In the first case, the Defendant will win the lawsuit. In the second case the Claimant will win the lawsuit.
The procedures set out in the Small Claims Act and Rules do not provide for a fast way to deal with a lawsuit once the Defendant has filed a Reply. The Act and Rules appear to require that there be a Settlement Conference and then a trial. But, in some places in British Columbia, it can take up to six months before a Settlement Conference is held and a year after that before a trial. To avoid this delay some Small Claims Judges are allowing a Claimant to apply for a “Summary Judgment Hearing.” A Summary Judgment Hearing is a shortcut which allows the Claimant or Defendant to attempt to end the lawsuit.
THE LEGAL BASIS FOR A SUMMARY JUDGMENT APPLICATION
A Summary Judgment Hearing is not expressly provided for in the Small Claims Act and Rules. Thus the Judges have had to look at the Act and Rules very carefully to discover where they might have authority to allow for such a hearing.
Section 2 of the Small Claims Act says that “the purpose of this Act and the rules is to allow people who bring claims to the Provincial Court to have them resolved and to have enforcement proceedings concluded in a just, speedy, inexpensive and simple manner.”
The Judges have emphasized that the statute clearly says that Small Claims lawsuits shall be dealt with in a speedy manner and so have looked for a basis to allow that to happen. Rule 16(6)(o) states that a Judge may make “any other order that a judge has the power to make and notice of which is served on another party.” Some of the Small Claims Judges have decided that the power to make “any other order,” combined with the direction in the Small Claims Act that claims shall be dealt with in a speedy manner, allows Judges to hold a Summary Judgment Hearing.
HOW TO APPLY FOR A SUMMARY JUDGMENT HEARING
To apply for a Summary Judgment Hearing you must fill in an Application to a Judge form.
If you refer to that form, you will see that there are only two parts of the form which may be difficult to fill in. The first is the part of the form that asks you for details of the order you are asking for. The second is the part of the form that asks you for the facts upon which your application is based.
DETAILS OF THE ORDER YOU ARE ASKING FOR
The words to use to describe the order you want are as follows:
If you are a Claimant you would write:
“The Court conduct a Summary Judgment Hearing and grant to the Claimant an order for the claim set out in the Notice of Claim.”
If you are a Defendant you would write:
“The Court conduct a Summary Judgment Hearing and dismiss the claim set out in the Notice of Claim.”
FACTS UPON WHICH THE APPLICATION IS BASED
After the words, “The facts on which the application is based are as follows:” a Claimant should write the facts that will show the Defendant clearly has no defence to the claim. A Defendant would write facts that show the Claimant’s action should be dismissed.
For example, let’s suppose a Claimant sold a lamp to a Defendant at a garage sale. The Defendant gave the Claimant a cheque for $125.00. Let’s suppose the cheque was then returned NSF. In this case the Claimant has a contract with the Defendant which the Defendant has breached. If the Defendant did not state in the Reply that there was a reason for not paying (such as the lamp turned out to be broken and unfixable) then there may be no defence.
In this case the words that would be used on the Application to a Judge form would be as follows:
- “I sold a lamp to the Defendant for $125.00;
- The Defendant gave me a cheque for $125.00 which was returned NSF;
- The Defendant has not paid for the lamp even though I told him about the cheque being returned NSF;
- In the Reply the Defendant did not state any reason why the contract for the sale of the lamp should not be enforced.
OBTAINING FURTHER ADVICE
You may wish to get legal advice to ensure that the Defendant has not stated facts on the Reply form which would require a full trial. This is because if the Defendant has stated such facts which would require a full trial, you will not be successful at a Summary Judgment Hearing.
You may obtain advice from:
- A lawyer in private practice;
- A lawyer you are referred to through the Lawyer Referral Service(where you can speak with a lawyer for up to 30 minutes for a fee of $25); or
- If you are eligible, from a Legal Aid office.
FILE THE APPLICATION
After you have filled in the Application to a Judge form, make four photocopies and then file the form at the Small Claims Court Registry.
At the time you file the form, the clerk will tell you the date and time of the hearing.
You must then serve the Application on the Defendant. You can serve the Application form in three ways. You can:
- Leave a copy with the Defendant.
- Mail it by ordinary mail to the Defendant’s address.
- Mail it be registered mail or certified mail.
If the Application is mailed, it is presumed by law to have been delivered fourteen days after being sent, unless there is evidence of earlier delivery.
HOW LONG BEFORE THE HEARING
The Defendant must receive the Application seven days before the hearing. Thus, the soonest the hearing could take place would be eight days after the Application was filed. To have the hearing so soon would require the Court Clerk to have set the court date eight days after the Application was filed. The Defendant would also have to be handed a copy of the Application on the same day it was filed.
If the Application is going to be mailed to the Defendant, the date of the hearing should be set not less than 22 days after the date of filing. This would allow 14 days for the delivery of the Application by mail plus 7 days the Defendant is allowed to have between the time of being served and the time of the hearing.
APPEAR BEFORE A JUDGE
Appear in Court on the day and at the time required on the Application to a Judge form.
Be sure to arrive on time. Your opportunity to speak to the Judge will usually occur early in the Court session. When you arrive you should take a seat in the Courtroom. After Court is called to order, the Judge or Court Clerk will usually read through the whole list of the day’s cases. When your case is called stand up and inform the Judge that you are present. After the Judge reads through the list once, the Judge will begin to go through the list a second time. When the Judge calls out the name of your case the second time, you should go to the front of the Courtroom. Stand when you speak to the Judge and address the Judge as “Your Honour.”
You should say the following: “Your Honour, I am making an application for Summary Judgment in this case.”
You should then give the Judge a summary of the facts relating to your case. The Judge may ask you to be sworn so that the facts are given under oath. The Judge may also ask you questions. If the opposite party is present in Court, they also will be allowed by the Judge to ask you questions.
After you have spoken (and given evidence under oath if requested by the Judge), the opposite party, if present, will be given an opportunity to tell the Judge what his or her position is with respect to your application. The Judge may also ask the opposite party to give evidence under oath and answer any questions you may have.
PREPARE AN ORDER
If the Judge decides to grant an Order in your favour, then the Order must be put in writing.
The bottom of the Application to a Judge form is used for this purpose. Sometimes the Judge (or Clerk) will fill in the form. Other times, the Judge will order you to fill in the form. In both cases, the Judge must sign the Order in the box containing the words “By the Court.” The Order must then be filed in the Court Registry.
THE NEXT STEP
If you are a Claimant and you succeed in obtaining an Order, you may wish to read Factsheet 15, which is called “An Overview of Collection Procedures.”
If you are unsuccessful, the next step in your Court action will be a Settlement Conference. To prepare for a Settlement Conference you may wish to read Factsheet 12.
Prepared by Glenn Gallins
Revised March 2008, links updated 2019
Funded by the PLE Program of the Legal Services Society