Hergott: Litigation lending cost win bad for insuranace companies

Court rules in favour of a man who challenged the interest rate charges on borrowing for litigation.

An Oct. 18, 2012, judgment from the highest court in New Brunswick is paving the way for a change in the law in other jurisdictions, including British Columbia.

A 17-year-old motorcyclist, a Mr.  LeBlanc, was seriously injured in a crash when an oncoming van forced him off the road.

The defending insurance company denied liability, blaming LeBlanc for being the author of his own misfortune.

LeBlanc hired a lawyer. His lawyer required him to come up with the money to pay for disbursements, the dollars that would be spent taking the case to trial. Those disbursements ended up costing over $26,000.

There was a standard contingency fee arrangement, with the lawyer’s fees to be paid as a percentage of the compensation LeBlanc ended up with, if any.

I say “if any” because no compensation would be payable if LeBlanc was found to be at fault.

The lawyer was willing to risk his fees on the outcome of the case, but was not prepared to risk putting his own money out to pay for the disbursements.

In the words of the New Brunswick Court of Appeal: “Only a foolhardy lawyer would have agreed to undertake that risk.”

LeBlanc was forced to find financing.

He went to two banks, asking for a line of credit. Both banks refused him credit. No surprise there—why would a bank give a line of credit to a 17-year-old, disabled from working, on the basis of an uncertain legal claim?

There was one company willing to lend money to LeBlanc—Seahold Investments.

Seahold Investments is what I refer to as a litigation lender. They take the risk of lending money to fund litigation.

They are paid handsomely for taking that risk. The interest rate referred to by the New Brunswick Court of Appeal was 2.4 per cent per month, compounded monthly.

By my calculation, the equivalent annual rate is almost 33 per cent. I expect there were set-up charges on top of that interest rate as well.

The interest expense LeBlanc ended up incurring to finance the disbursements was over $14,000, approximately 54 per cent of the cost of the disbursements themselves.

LeBlanc was successful in his case. He was completely exonerated of fault, and able to move forward to pursue fair compensation for his injuries and other losses.

He was awarded costs against the defending insurance company.

The issue that the New Brunswick Court of Appeal faced was whether or not LeBlanc could recover reimbursement of the more than $14,000 of the interest as part of those borrowing costs.

The Court of Appeal considered whether or not the high interest loans were necessary, and found the following: “Without financial assistance from a third party, Mr. LeBlanc would not have been able to enforce his rights in the courts.

The loans granted by Seahold Investments were therefore essential to allow Mr. LeBlanc access to justice…”

Addressing the necessity square on, the ruling stated: “The loans taken out by Mr. LeBlanc were necessary to prevent a most unjust outcome for his legal dispute with the respondents: the settlement of his claim for a pittance or perhaps even its abandonment.”

As you might have already anticipated, the defending insurance company was ordered to pay the interest.

The law in British Columbia, at present, does not allow for recovery of the cost of disbursement financing as costs.

That issue, though, is poised to go before the British Columbia Court of Appeal for consideration.

While the decision of another provincial court of appeal is not binding on our courts, I am hopeful that it has influence and that the law in this province will change.

I will certainly let you know the outcome of the issue as soon as it is determined.

This column is intended to provide general information about injury claims. It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case. Paul Hergott is a lawyer  at Hergott Law in West Kelowna.

 

paul@hlaw.ca

 

 

Just Posted

UBCO Heat teams unable to secure any wins against Mount Royal Cougars

The mens and womens volleyball and basketball teams went 0-4, but all have rematches Saturday night

Rockets held scoreless in loss against Red Deer

Rockets will look for some points in final game of road trip against Edmonton

Kelowna’s definitive Christmas market list

We’ve prepared a list of every market in the Central Okanagan

Your guide to winter light ups around the Okanagan

From Vernon to Summerland, with a stop in Kelowna, we’ve found some activities for you to enjoy

New maintenance crew to look after Okanagan Connector

Acciona Infrastructure Maintenance Inc. will replace Argo Road Maintenance Inc. in 2019

Trudeau offers to help Pacific islands face climate change impact

Prime Minister Justin Trudeau met with the leaders from the Pacific island nations on Saturday during the APEC Summit in Papua New Guinea

Price makes 36 saves as Habs edge Canucks 3-2

Late goal lifts Montreal past Vancouver

BC Minister of Agriculture loses stepson to accidental overdose

Lana Popham announces death of her 23-year-old stepson, Dan Sealey

Canadian military’s template for perfect recruits outdated: Vance

Gen. Jonathan Vance, the chief of defence staff says that the military has to change because the very nature of warfare is changing, particularly when it comes to cyber-warfare

‘Toxic’ chosen as the Word of the Year by Oxford Dictionaries

Other top contenders for 2018 include ‘gaslighting’ and ‘techlash’

RCMP bust illegal B.C. cannabis lab

Marijuana may be legal but altering it using chemicals violates the Cannabis Act

Canada defeats Germany 29-10 in repechage, moves step closer to Rugby World Cup

Hong Kong needs a bonus-point win over Canada — scoring four or more tries — while denying the Canadians a bonus point

Avalanche Canada in desperate need of funding

The organization provides avalanche forecasting for an area larger than the United Kingdom

5 B.C. cities break temperature records

Parts of B.C. remain warm, at 10 C, while others feeling chilly

Most Read