Walsh v. Muirhead

2018 BCCA 345 Walsh v. Muirhead

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Walsh v. Muirhead, 2018 BCCA 345 Date: 20180906 Docket: CA45291 Between: Moira Eleanor Walsh Respondent (Plaintiff) And Stephen Kerry Walsh and Ronald Stewart Walsh, also known as Ronald Steward Walsh, Executors of the Estate of Lindsay Clinton Walsh, Lynda Gail Walsh, Stephen Kerry Walsh and Dana Leanne Miller Respondents (Defendants) And Jacy Wingson Respondent And Nathan Muirhead Appellant Before: The Honourable Madam Justice Newbury (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated April 17, 2018 (Walsh v. Walsh, 2018 BCSC 617, New Westminster Docket S138489). Oral Reasons for Judgment Counsel for the Appellant: J.S. Forstrom Counsel for the Respondent, Jacy Wingson: D.A.T. Moseley No one appearing on behalf of Moira Eleanor Walsh No one appearing on behalf of Stephen Kerry Walsh and Ronald Stewart Walsh, also known as Ronald Steward Walsh Place and Date of Hearing: Vancouver, British Columbia September 5, 2018 Place and Date of Judgment: Vancouver, British Columbia September 6, 2018 Summary: Leave to appeal granted in respect of order against lawyer to pay special costs. [1] NEWBURY J.A.: Counsel, notwithstanding Mr. Moseley's able argument to the contrary, I have concluded that leave should be granted on two issues, which I will clarify in a moment. It is this court's practice not to give

substantive reasons when leave is granted, but I will say I agree that this case is 'unusual' in that Mr. Muirhead had told the court below that he accepted responsibility for his "error in judgment". Whether he meant he accepted responsibility, in the form of liability for special costs, may be another question. There is also the issue of how the rules of procedural fairness would apply in these circumstances. [2] The appeal is a matter of importance to the profession generally, and will not delay any appeal. Given that an order for special costs is reserved for reprehensible conduct, it is also of obvious importance to Mr. Muirhead himself. [3] There was some lack of clarity concerning the scope of the appeal as stated in Mr. Muirhead's application for leave. After anxious consideration, I note for the record that leave is being given to appeal on two issues: the identity of the payor of costs i.e., whether Mr. Muirhead (as opposed to his clients) should be liable for costs; and, if Mr. Muirhead should be liable, whether the court below erred in granting special costs (as opposed to regular costs). This means that the respondents will, after the appeal is disposed of, still be entitled to costs in some form, but both the identity of the payor and the nature of the costs (special or not) will be decided on the appeal. [4] I also note for the record that Mr. Forstrom has told me that Mr. Muirhead's clients have been fully advised of this matter and have been encouraged to seek independent legal advice concerning it, given the potential, if not actual, conflict of interest between Mr. Muirhead and those clients. [5] Leave is granted on the two issues I have indicated. "The Honourable Madam Justice Newbury"