Judge Criticizes Inadequacy of Material to Support Costs Claimed on Motion for Settlement Approval

Lau v. Bloomfield is the latest in a series of cases in which judges have taken lawyers to task for inadequate materials filed in support of motions for court approval of settlements. (See our previous discussions of Marcoccia v. Gill and Rivera v. Leblond.) In this case, the plaintiff was catastrophically injured. Her daughter acted as her litigation guardian. Justice Nancy J. Spies heard a motion for court approval of settlement of both the tort and accident benefits claims.

Justice Spies said that, “in order for there to be meaningful court approval, in the motion record counsel must provide a copy of the retainer agreement, the dockets, hourly rates claimed, a list of the lawyers/law clerks who worked on the file, the total number of hours spent by each person on the file and in the case of lawyers, their year of call and in the case of law clerks whether they are a junior or senior clerk”.

Her Honour expanded on the level of detail required in the description of work done by the law firm:

In addition a summary of the nature of the work done by each person must be included. That summary is not to be simply a list of specific matters that were done, as was provided to me by counsel in this case as this obviously does not give the reviewing judge any assistance whatsoever. Particulars must be provided such as the number of hours spent to prepare an examination, the number of days spent at the examinations and whether it was for the purpose of examining a witness or simply accompanying the client. The same applies to court attendances.

To simply state there were motions is meaningless without particulars of the nature of the motion, a summary of the material prepared for the motion and whether it was argued and if so the length of the court attendance. This is also obviously the case for mediations and other hearings and settlement conferences. Counsel may also wish to consider reference to some of the factors set out in Rule 57.

The summary of the nature of the work done is of critical importance and should be carefully prepared. It is totally unacceptable to simply refer to the dockets. The difficulty with dockets is that they can be very cryptic, as most were in this case, and very time consuming for the court to review. The court cannot be expected to try to ascertain the value of the work done by a review of the dockets. That is the job of counsel. The dockets are provided so that if questions arise they can be referred to. They are not a substitute for the summary of work done by each person who worked on the file.

The retainer agreement in this case was the same as the one in Marcoccia v. Gill (since it was the same law firm in both cases). Justice Spies said that she shared the concerns expressed in that case, about the appropriateness of the agreement, which she felt was so ambiguous as to be meaningless.

Her Honour was critical of the fact that the senior lawyer on the file had docketed 0.1 hours for receipt of each of numerous pieces of correspondence, without indicating that she (the lawyer) had reviewed that correspondence. Justice Spies accordingly disregarded those time entries in evaluating the costs.

Her Honour felt that the case had not been complex and the amounts involved were “modest”. She acknowledged that there was some risk of non-payment to the law firm because of what was evidently a significant liability issue.

In the end, after a detailed analysis of the work done, Justice Spies disallowed a portion of the costs claimed in both the tort and AB settlements.

This decision is certainly a cautionary tale for plaintiffs’ counsel. However, in the wake of Marcoccia and other similar cases, a committee has been struck to review the procedures involved in obtaining court approval of settlements. It is likely that, before too much longer, there will be new guidelines to assist both counsel and the court in dealing with such cases. Stay tuned!

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