Universal Sales, Limited c. Edinburgh Assurance Co. Ltd., 2012 FC 1192 (2012)

Conférencier:The Honourable Mr. Justice Harrington
Numéro de Registre:T-1148-01
Parties:Universal Sales, Limited c. Edinburgh Assurance Co. Ltd.
 
EXTRAIT GRATUIT

Federal Court - Universal Sales, Limited v. Edinburgh Assurance Co. Ltd.

Source: http://decisions.fct-cf.gc.ca/en/2012/2012fc1192/2012fc1192.html

Date: 20121012

Docket: T-1148-01

Citation: 2012 FC 1192

Vancouver , British Columbia , October 12, 2012

PRESENT: The Honourable Mr. Justice Harrington

BETWEEN:

UNIVERSAL SALES, LIMITED, ATLANTIC TOWING LIMITED, J. D. IRVING, LIMITED, IRVING OIL COMPANY, LIMITED AND IRVING OIL LIMITED

Plaintiffs

and

EDINBURGH ASSURANCE CO. LTD., ORION INSURANCE CO. LTD., BRITISH LAW INSURANCE CO. LTD., ENGLISH & AMERICAN INS. CO. LTD., ECONOMIC INSURANCE CO. LTD., ANDREW WEIR INS. CO. LTD., INSURANCE CO. OF NORTH AMERICA, LONDON & EDINBURGH GENERAL INS. CO. LTD., OCEAN MARINE INS. CO. LTD., ROYAL EXCHANGE ASSURANCE, SUN INSURANCE OFFICE LTD., SPHERE INSURANCE CO. LTD., DRAKE INSURANCE CO. LTD., EAGLE STAR INSURANCE CO. LTD. AND

STEPHEN ROY MERRITT, AS REPRESENTATIVE OF UNDERWRITERS SUBSCRIBING TO LLOYD’S POLICY NO. 614/B94656-A/1582

Defendants

REASONS FOR JUDGMENT AND JUDGMENT

(INTEREST AND COSTS)

[1] On 25 April 2012, I granted judgment in favour of Universal Sales Limited, Atlantic Towing Limited and J.D. Irving Limited against the defendants, severally, but not jointly, in the amount of $4,946,001.86. On consent, interest and costs were left to be dealt with later. The plaintiffs have now moved with respect thereto, and the defendants have replied. Both have led evidence.

[2] The judgment shall be as if it were rendered at the same time as were the issues of liability and quantum. I say this because since then some of the defendants have settled, while others have taken the case to appeal. This judgment shall ignore that fact since whatever agreement had been reached was reached and, obviously, will take precedence. As the defendants were not jointly liable, the parties can work out for themselves whatever calculations are required.

INTEREST

[3] With respect to interest, the issues are:

a. Since there is always a burden on a plaintiff to move a case along, and since it took 11 years to get to trial, should the plaintiffs be deprived of some of the interest they might otherwise have been awarded?

b. From when should interest run: from the date the particularized claim was sent to the underwriters, the date the action was instituted, or some other date?

c. At what annual rate should interest be awarded?

d. Should interest be compounded semi-annually, or at some other interval? and e. Should post-judgment interest be calculated at the same rate as pre-judgment interest?

COSTS

[4] With respect to costs, the issues are:

a. Should the plaintiffs be awarded enhanced costs and, if so, on what basis?

b. Should costs be reduced on a divided success basis given that the plaintiffs obtained less than 50 percent of what they sought, and did not succeed on major issues?

c. To what extent, if any, should settlement offers withdrawn before trial be taken into account?

d. The complexity of the case, time wasted, and the many other factors enumerated in Rules 400 and following of the Federal Courts Rules .

DELAYS

[5] In my reasons for judgment, 2012 FC 418, [2012] FCJ No 536 (QL), I stated I would want some explanation as to why this matter took 11 years to get to trial. During argument, I had mentioned the decision of Mr. Justice Joyal in Santa Marina Shipping Co SA v Madeg Holdings Inc , 6 FTR 269, 1 ACWS (3d) 302, [1986] FCJ No 636 (QL) (the “ Marina ”). In that case, there had also been an interval of 11 years from the date of the institution of the action until trial. He ascribed a fair portion of this delay to the plaintiff and only awarded interest at 60 percent of the average bank prime rate from the date of the institution of the action, which was some four years after the cause of action had arisen.

[6] In this case evidence was led by David Jamieson, executive vice-president and assistant secretary of J.D. Irving Limited and assistant secretary of Universal Sales Limited and Atlantic Towing Limited, and by Martin Futter, the lead claims adjuster for the underwriters subscribing to the Lloyd’s Policy. Neither was cross-examined.

[7] I am satisfied...

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