Date: 19981204 Docket: C937086 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: XIMENA JESSICA NICOLE RENAERTS, BY HER GUARDIAN AD LITEM MARGARET RENAERTS AND THE SAID MARGARET RENAERTS PLAINTIFF AND: DR. GERALD KORN, DR. KAMAL JAROUDI, DR. EWA WOJTOWSKA, DR. EDWARD VICTOR WELSH, NURSE GWEN FARRELL, NURSE MARY CAMERON-LANE, TECHNOLOGIST "ESTAKA", VANCOUVER HOSPITAL AND HEALTH SCIENCES CENTRE FORMERLY KNOWN AS VANCOUVER GENERAL HOSPITAL, NADINE BOURNE, JUSTICE RILEY DEFENDANTS AND: VANCOUVER GENERAL HOSPITAL, NURSE VERA WOOD, NURSE JOYCE HATHERALL, NURSE GWEN FARRELL, NURSE MARY CAMERON-LANE, DR. KAMAL JAROUDI THIRD PARTIES REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE WILLIAMSON Counsel for the Plaintiff: Thomas R. Berger, Q.C. Gary A. Nelson Margaret D. Vanderkruyk Lynn C. Waterman Counsel for the Public Trustee: Duncan J. Manson Counsel for the Defendant Hospital: J. Christopher Grauer Appeared only part of the day on October 19, 1998 Place and Dates of Hearing: Vancouver, B.C. October 19 and 20, 1998 [1] On September 29, 1998, exercising the responsibilities vested in the court by s.40(8) of the Infants Act, R.S.B.C. 1996, c. 223, I approved a settlement of this case negotiated by the parties. I expressly reserved on three issues: should the trust funds held for the benefit of the infant plaintiff be administered by the Public Trustee or a private trust company; should the proposed counsel fee be approved; and should the file in this matter remain sealed? These are my reasons and conclusions upon those questions. [2] Ximena Renaerts was born in Vancouver General Hospital, as it was then known, on December 17, 1985. In this lawsuit brought by Ms. Renaerts through her Guardian ad litem against a number of defendants, it was alleged that in the first few hours of her life the actions or omissions of the defendants caused her catastrophic injuries. The infant plaintiff claims that in the first 45 minutes of her life she received no care, and that subsequently the negligence of the defendants, or one of them, resulted in delaying significantly the arrival of the infant resuscitation team from Children's Hospital. Ximena has cerebral palsy, is quadriplegic and, although now 12 years of age, has the language ability of a two to three year old. She cannot dress or bathe independently. She will require 24 hour care throughout her life. [3] Upon her release from hospital she was taken into the custody of the Superintendent of Family and Child Services. After some years in foster homes, she was adopted by Mr. and Mrs. Renaerts. The Renaerts knew little of the circumstances of Ximena's birth. Having gleaned some information which can be described as rumour, Mrs. Renaerts spoke to a lawyer, Mr. Charles Lugosi, in March of 1992. He agreed to look into the matter. [4] After much difficulty, he was able to obtain some medical records in November of 1992. He reviewed them. He then sought and obtained legal opinions from two reputable law firms: Farris and Company and Arvay, Finlay. Those opinions were both negative and noted, among other things, that the action was statute barred by the Limitation Act, R.S.B.C. 1979, c. 236 as it then stood. [5] Nevertheless, Mr. Lugosi continued. A writ of summons was filed December 29, 1993. It included claims based upon Criminal Code provisions, presumably unaffected by the Limitation Act. The material discloses, and I conclude, that the case at that time faced considerable difficulties. [6] In January of 1994 Mr. Lugosi consulted Berger & Nelson. Eventually, that firm was retained and the claim was recast to reflect a cause of action based upon abandonment and intentional infliction of harm. In 1994, the Limitation Act was amended and as the plaintiff here was and is an infant, the limitation issue was removed: see Limitation Amendment Act, S.B.C. 1994, c. 8, in force June 2, 1994. [7] The case, however, remained very difficult, particularly on the issue of causation. Berger & Nelson, assisted by Lugosi and Company, and later by Rosenbloom and Aldridge, pursued the matter diligently. The defendants were represented by counsel from two law firms well known to these courts for their determined and capable work in medical malpractice cases. [8] After various pre-trial motions which I will discuss below, the matter was set for trial, with a jury, in June of this year. The weekend before the trial was to commence, the case was settled. As noted above, on September 29, 1998, I approved the settlement but left two questions open: (1) should the trust portion of the settlement be administered by the Public Trustee or a named private trust company; and (2) should this court approve the solicitors' fees? Proceeding in this manner is consistent with the view expressed by Esson C.J.S.C, as he then was, in Richardson (Guardian ad litem of) v. Low (1996), 23 B.C.L.R. (3d) 268 at 276. [9] I add that counsel for the defendant hospital appeared briefly on this application to submit that as the settlement agreement contained a confidentiality clause the file should remain sealed. The Trust Issue [10] The settlement approved by order of September 29, 1998 totals $8,000,000 plus $500,000 for costs, plus disbursements. $3,000,000 has taken the form of a structured settlement which will provide the infant plaintiff with a monthly income of just under $10,000. As well, payments of $100,000 will be made upon each of six specified days occurring every five years from December 2003, to December 2028. [11] It is proposed to have a trustee administer the remainder of the infant plaintiff's portion of the settlement, approximately $2,000,000. The issue is whether this fund should be administered by the Public Trustee or by a private trust company, Scotiatrust. The justification for placing the funds with Scotiatrust is that the private company charges lower fees. The infant plaintiff will save approximately $200,000 over the period to her nineteenth birthday if the funds are placed with Scotiatrust rather than the Public Trustee. [12] Although the Public Trustee initially appeared to be opposed to this course, in supplemental comments contained in a letter dated October 16, 1998, the Public Trustee conceded that he would not object to the use of Scotiatrust. [13] The usual reason for placing such a trust fund with the Public Trustee is that it is accepted that institution has a considerable body of expertise in dealing with trust funds set aside for the severely disabled. However, uncontradicted material filed with this application discloses that the Renaerts' family, who as I noted above have adopted the infant plaintiff, have extensive experience caring for severely disabled children. They have adopted a number of such children and have cared for them, it is deposed, "to the highest standards". They are, in short, experienced and dedicated. [14] Further, because $3,000,000 has been placed in a structured settlement providing a substantial monthly income and periodic lump sum payments for the benefit of the infant plaintiff, the $2,000,000 to be placed in trust has been described by the Public Trustee as "a block of wealth that Ximena will utilize only in exceptional circumstances". [15] I am satisfied that the expertise of the Public Trustee is not required in this particular case. I conclude, then, that the fund should be placed with Scotiatrust. [16] The Public Trustee has requested that it be a term of the order that Scotiatrust obtain the approval of the Public Trustee before encroaching upon the capital, and that such encroachments be limited. The Public Trustee also asks that there be liberty in the Public Trustee to apply for removal of Scotiatrust or revisions of the terms of the trusteeship should that become necessary. [17] Mr. Berger agrees that the trustee should be limited to encroaching upon the capital to $5,000 at any one time, with a maximum of $25,000 per year. On the other hand, he submits that the point of this trust fund is not to build up an estate for the infant plaintiff, but to ensure funds are available during her lifetime for extraordinary expenses which may arise. I agree that this must be the purpose of the fund. [18] I am satisfied that the above described monetary limits restricting the amounts of encroachments upon capital are appropriate and that within those limits encroachments may be made without prior approval of the Public Trustee. I add the following. In the event of an extraordinary requirement beyond $5,000 at one time or $25,000 in one year, the trustee must apply to the Public Trustee, but without the necessity of an application to the court, for approval of a greater encroachment upon the capital. [19] I am not persuaded it is necessary for the trustee to apply for the Public Trustee's authorization of encroachments within these amounts. Nor am I satisfied there is a need for the order to set out that the Public Trustee shall have liberty to apply. There is a statutory requirement that the trustee account to the Public Trustee every two years, and the Public Trustee has existing statutory general rights to apply to the court where necessary. This is a sufficient safeguard when, as here, the trustee is a stable and substantial commercial trust company which, the material discloses, has specific experience administering trust funds for disabled beneficiaries. [20] Finally, I note that "Scotiatrust" is the business name of the Bank of Nova Scotiatrust Company. I am told that the Montreal Trust has become a wholly owned subsidiary of the Bank of Nova Scotia and that it is anticipated that early in 1999 Scotiatrust will be carrying on business under the name the Montreal Trust Company of Canada. My comments and directions with respect to Scotiatrust will apply to that company operating as it does now or in the future as the Montreal Trust Company of Canada. Counsels' Fees [21] I am told that the settlement in this matter is the largest infant settlement in the Province of British Columbia to date. Not surprisingly, the conduct of the case was pursuant to a contingency agreement. The original 1992 agreement, between the Guardian ad litem and Lugosi and Company, was that the counsel fee would be 25% if the action were settled 40 days or more before trial, and 33-1/3% if it were not. The percentage was to be increased by 5% if the case was ready for trial but was adjourned. The client was to cover disbursements. [22] Mr. Lugosi had conduct of the file until 1994 when a new contingency fee agreement was executed between the law firms of Berger & Nelson and Lugosi and Company with the Guardian ad litem. That agreement, effective November 1, 1994, provided for a fee of 33-1/3% of the amount recovered after judgment or settlement. The extra 5% clause was eliminated, and the law firms, recognizing that the Renaerts did not have the financial resources to pay the necessary disbursements, agreed to waive disbursements if there were no recovery. [23] As noted above, the case settled two days before the trial date of June 1, 1998. In consideration of this, and the obligation of counsel to ensure that in the end the fee charged was and continues to be reasonable, counsel reduced the proposed fee by almost 6% to 27-1/2% or $2,200,000. $500,000 of the settlement was for costs, and counsel agreed these funds would be applied to reduce the plaintiff's legal expenses. In the result, I am told, the $8,000,000 settlement would be reduced by $2,008,000 to cover counsel fees, G.S.T. and P.S.T. [24] The Public Trustee emphasizes that a fee of over $2,000,000 is unprecedented for personal injury litigation. Mr. Manson acknowledges that it is essential to maintain a robust bar prepared to pursue litigation on behalf of financially strapped and legally unsophisticated plaintiffs. However, he submits the premium represented by the proposed fee is out of line with other cases in which risks were high, the facts challenging, and counsels' skill, experience and dedication important to the result. Thus, the Public Trustee argues, while plaintiff's counsel are entitled to a premium they are not entitled to a fee of this magnitude. [25] The factors to be considered in these circumstances are those set out in the frequently cited case of Yule v. Saskatoon [1956] 1 D.L.R. 540 (Sask. C.A.), as well as the additional factor of risk. [26] More recently in a case binding upon this court, Harrington (Guardian ad litem of) v. Royal Inland Hospital (1995), 14 B.C.L.R. (3d) 201 (B.C.C.A.), a suit involving an infant plaintiff said to have sustained brain damage at birth, Mr. Justice Hinds, speaking for the majority at p. 268-269, set out a number of factors to be considered in such cases. They include: 1. the financial circumstances of the plaintiff; 2. whether the law firm carried the disbursements; 3. the complexity of the issues; 4. the experience and competence of defendants' counsel; 5. the degree of risk assumed by plaintiffs' counsel; 6. the experience and competence of plaintiffs' counsel; 7. the time expended by plaintiffs' counsel; 8. the timing of the settlement; 9. the importance of the case to the plaintiffs; and 10. whether the settlement was a good one. Hinds J.A. went on to observe, at p. 269, that: A solicitor who undertakes the prosecution of a difficult case, the prospects of which are uncertain due to various issues such as liability, causation or damages, is entitled to be well compensated in the event the case is brought to a successful conclusion. Such remuneration must be substantial, but not exorbitant, in order to make up for those cases taken by the solicitor on a contingency fee basis which do not result in success. [27] I propose to consider the same factors. [28] First, while the word "impecunious" used by Mr. Justice Hinds in Harrington may be too strong to describe the financial circumstances of Mr. and Mrs. Renaerts, I find that they would have been unable to investigate and prosecute this case unless counsel had come forward on a contingency basis. I say "investigate" and prosecute deliberately, for the initial inquiry into the circumstances of Ximena's birth, including an alleged attempted abortion in Washington State shortly before the mother's admission to the defendant hospital, was most difficult and time consuming, given the less than forthcoming attitude of the hospital. [29] Substantial travel costs were incurred. Several trips were necessary to interview experts in other cities, and in one case, as a defendant now residing overseas refused to return to Canada, counsel had to travel to Spain to conduct an examination for discovery. The costs of local examinations for discovery and experts' reports alone would have placed the prosecution of this lawsuit far beyond the financial resources of the Renaerts. The disbursements are close to $200,000. They were paid by the law firms. That this represented a financial hurdle prohibitive to the Renaerts is evident in the material and confirmed in a letter from Mrs. Renaerts dated October 9, 1998, and filed. [30] Second, in the contingency agreement executed when Berger & Nelson became involved in 1994, the law firms agreed that in the event this lawsuit were unsuccessful they would remain responsible for disbursements. Bearing these costs represented a serious risk for counsel. Affidavit material discloses the extent of the disbursements placed considerable financial strain upon Berger & Nelson, and were primarily responsible for two increases in the firm's line of credit. [31] Third, the case involved complex and difficult issues of investigation and of law. Liability and quantum were in issue and tenaciously opposed by competent and experienced counsel until the settlement two days before trial. [32] On April 20, 1998, six weeks before trial, the defendants brought a motion to strike the jury notice. Despite the odds against them on such applications in medical cases, as discussed in Chong (Guardian ad litem of) v. Royal Columbian Hospital (1997), 31 B.C.L.R. (3d) 303 (S.C.) at para. 37, plaintiffs' counsel succeeded and the application was dismissed by McEwan J. Two weeks before the trial, an application for leave to appeal this decision was dismissed by Hinds J.A. Mr. Berger submits counsels' success in holding on to the jury was a significant factor encouraging settlement. [33] On May 20, 1998, some of the defendants and certain then- named third parties brought an application pursuant to Rule 18A. After three days of argument, Cole J. allowed the application in part. However, he ruled that the doctor who first examined the infant plaintiff's mother upon her arrival at the hospital would remain a defendant and the trial would go ahead June 1st. Counsel for the infant plaintiff submits this ruling, coming May 29, the Friday immediately before the Monday of the opening of trial, was a further encouragement to settlement. [34] On May 27, 1998, five days before trial, the defendant hospital brought an application to adjourn the trial to permit the commencement of third party proceedings against doctors and a clinic in Bellingham, Washington. The following day, Clancy J. adjourned generally the application to add third parties, and dismissed the motion to adjourn. [35] This flurry of lengthy applications in the days immediately before the trial date indicates a determination on the part of the defendants to avoid or delay the trial. I accept that the cumulative effect of the rulings obtained by counsel for the plaintiffs must be seen to have encouraged settlement. [36] In considering the complexity of the issues, I observe that causation was particularly problematic. The defendants had medical opinions that the injuries to the infant plaintiff probably occurred as a result of whatever happened in Washington State prior to the birth mother's arrival at the defendant hospital. The plaintiffs obtained rebuttal reports in April and May, some just days before the trial date. [37] By my count, the plaintiffs commissioned 13 experts to prepare 20 reports; the defendants produced 16 reports. These included opinions from pediatricians, pediatric neurologists, gynecologists, obstetricians and developmental pediatricians. There were reports on life expectancy, rehabilitation and future care, and the calculation of costs for these requirements. There is no suggestion that any of these reports were unnecessary. Having reviewed the reasons for judgment in the various cases put before me by counsel, and taking into account cases I have been involved with as counsel or as a trial judge presiding over medical malpractice trials, I conclude this matter is among the most complex and difficult. [38] Fourth, I turn to the competence, experience and reputation of the defence team. I would go further than the observation in Harrington at p. 269, that if that matter had gone to trial "it was reasonable to assume the defendant would have been well represented." Here, the material discloses the defendants were very well represented and would have been at trial. [39] The fifth factor in Harrington is risk. As well as the substantial cash outlay for disbursements, plaintiffs' counsel expended hundreds of hours over the six years after Mr. Lugosi was first contacted by Mrs. Renaerts. Were the proceedings unsuccessful, this would mean a very substantial loss to all three law firms involved for the plaintiff. [40] Was there a substantial risk the plaintiffs would fail? In my view there was. This case, for reasons I have discussed, was very difficult. Medical malpractice cases generally are characterized by a significant failure rate. Pitfield J. recently observed this is so in Audet (Guardian ad litem of) v. Bates, (1998) 18 C.P.C. (4th) 357 (B.C.S.C.) at para. 23: The degree of success in medical negligence cases overall is, I am advised, in the range of 30% and that in respect of cases involving birth-related events in the range of 20% to 25%. I conclude plaintiffs' counsel in this case assumed a very high risk. [41] What is the character and standing of plaintiffs' counsel? Lead counsel, Mr. Berger, is a senior barrister with extensive experience in a substantial number of complicated personal injury cases. Indeed, he has been counsel on several cases which have been reported and are seminal cases in the development of the law: see, for example, Just v. B.C. (1989), 41 B.C.L.R. (2d) 350 and Athey v. Leonati (1996), 140 D.L.R. (4th) 235 in the Supreme Court of Canada. [42] Mr. Lugosi has also been counsel before the Supreme Court of Canada. Mr. Rosenbloom has practised and taught personal injury law for close to thirty years. All brought competence, experience and tenacity to this case. [43] In Harrington, the number of hours counsel spent on the case was in dispute. Counsel claimed he had devoted 800 hours to the matter; the learned chambers judge concluded 260 hours was the appropriate number. Here, as far as I can determine, there is no reason to question the estimates of counsel of the time expended. As of July, Mr. Berger estimated the bill for his time at his hourly rate, which increased in the period, would amount to $300,000. Other members of his firm kept records of their time spent on the file, disclosing a total of $167,000, also as of July. Mr. Lugosi estimates his time over the six years as greater than Mr. Berger's. He carried the file for close to three years and, after retaining Berger & Nelson, assisted on all the major motions. [44] That counsel often do not keep time records raises difficulties when one is assessing the reasonableness of fees. In so saying, I do not disregard the comments of Southin J.A. in Doig v. Davidson Muir (1998), 158 D.L.R. (4th) 1 (B.C.C.A.) (April 1, 1998) CA023189 at paragraphs 9 and 10: Until the 1950's, solicitors' fees were generally fixed by paying some regard to the tariff in the Supreme Court Rules. In that decade, someone invented the idea, rapidly adopted, that solicitors, like tradesmen, should charge by the hour. Thus, the invention of time sheets, now I suppose replaced by computer recording. What was not then invented and, so far as I know, has never been invented, is the solicitor's equivalent of the automobile mechanic's, I believe it is called, "Blue Book", which sets forth how long this or that job of repair should take. Concerning charging by time, these comments made in 1971 are as apposite now as they were then: ... the fee ... charged by the solicitors suggests that one of the dangers of keeping detailed dockets is that one might become mesmerized by the ticking of the clock and come to value the expenditure of time to the exclusion of all other factors that should bear on the assessment of a reasonable fee for solicitors' services. It is not true that a solicitor has only time to sell and whoever was the author of that inanity has little to be proud of. Of course, he may have been referring to that hopefully small minority of solicitors who, indeed, have little to offer a client but their time. But a solicitor, a competent solicitor, has knowledge, advice, expertise and experience with which to embellish the passage of raw time. It is these factors that weigh more heavily when fees are being considered, rather than how much time was lavished on the client's affairs. Another important factor is the value of the services of the solicitor, not to himself, but to his client. What did he accomplish for his client - if anything? [Re Solicitors, [1971] 3 O.R. 470 at 472, per Mr. McBride, the Taxing Officer.] [45] I also have in mind the comments of Pitfield J. in Audet, at paragraphs 19 and 20: Of the factors enunciated in Yule, I regard the concern for the number of hours occupied by a matter, a factor sometimes given considerable weight, to be of less importance than other factors. Skill, efficiency, and experience can reasonably be expected to produce a quality work product of considerable value in less time than will be the case where those attributes are lacking. On the other hand, hours worked can quickly expand to fill the time available and exceed any reasonable expectation. Slavish adherence to hours consumed in a task performed by a barrister when determining the reasonableness of a fee without an assessment of the quality of the labour represented by those hours can lead to an unjust result and either inadequate or excessive compensation. With respect for the views of others who may disagree, it is my judgment that factors other than time should be paramount. [46] One cannot ignore that one way counsel quite properly compensate for the difference between the value of one hour of the service of a seasoned competent barrister and that of an hour of a raw young lawyer one year out of law school is in fixing hourly rates. [47] With the greatest of respect to those who may think otherwise, I conclude that when counsel asks the court to affix its imprimatur to a premium to be awarded for a job well done, it is the time actually expended that of necessity must help to define the premium. Counsel who seek such approval without an accurate record of time expended, do so at increased risk. I would not, however, be taken to say that time expended is determinative. It is one factor to be considered among many. [48] In the complex and daunting circumstances of this case, on the material before me, I accept that the estimate of counsel that the value of the time actually expended on the file is approximately $835,000 is a conservative figure. [49] Eighth, it was not until late in the day, a factor considered by Baker J. in Lew v. Mount Saint Joseph Hospital Society (7 March, 1996) Vancouver C933152, that the defendants made their first proposal for settlement. Actual settlement was effected only two days before a trial with a jury was to commence. It was set for 20 days, in my respectful view an optimistic assessment. [50] Ninth, the successful conclusion of this suit was of crucial importance to the infant plaintiff and to the her adoptive mother, the Guardian ad litem. On the material it is evident the end to this protracted litigation will make a considerable difference to the now 12 year old Ximena and her care-givers who have coped for many years in circumstances of difficulty. [51] Tenth, the settlement cannot be said to be anything less than "good", the term used in Harrington. I am told it is the highest personal injury settlement to date in this province. It includes the maximum recovery for non-pecuniary loss, substantial awards for future wage loss, and some 84% of the costs set out in the plaintiff's expert report on future care requirements. It provides funds for appropriate housing and for insurance on the lives of the parents to the benefit of the infant plaintiff. It also includes a large award ($500,000) for costs. [52] Counsel submitted that they had developed a strong argument, given the circumstances of the first hour and a half of Ximena's life, for punitive damages. Material filed discloses substantial punitive damages were on the table during the settlement discussions in the days immediately before the trial date. The final settlement includes no award for punitive damages. Counsel submits, however, that the other heads of damages were in effect increased as a negotiating strategy to respond to the defendants determination to avoid the negative effects of agreeing to such an award. This, counsel submits, is an important factor in the achieving of such a substantial global settlement. It can hardly be said the result is not good. It is excellent. [53] But it is another consideration discussed in Harrington which is the critical issue in this application. The remuneration for which counsel seeks approval is substantial. Is it exorbitant? [54] The Guardian ad litem does not think so. In her October, 9, 1998, letter referred to above, she wrote: Six years ago we began the pursuit of justice on Ximena's behalf. We struggled in vein for two years trying to raise the money needed to get this case off the ground. After those first few very discouraging years, our original lawyer approached Mr. Tom Berger with the case, to see if he wanted to get involved. Mr. Berger graciously accepted the challenge of this case, not knowing if he would ever get paid. He spared not one expense when he sought out the best expert witnesses, and found a great team of lawyers, and other professionals to assist him. Mr. Berger did not once ask for anything in return. He treated our family with great dignity, compassion and respect. Mr. Berger put not only a lot of financial backing into this case, but he also put in a lot of personal time. [55] As well, Mr. Berger submits that allowing the proposed fee at 27-1/2% would not impinge upon the amounts provided in the settlement for future care of the infant plaintiff. He notes that as far as counsel can determine that aspect of the settlement alone exceeds the total amount of the award in any previous personal injury case. [56] However, the Public Trustee submits that because of the "sheer size of the settlement" the premium represented by the proposed counsel fee is "out of line" with other cases characterized by high risk and competent counsel work. Mr. Manson emphasizes the following passage from Esson C.J.S.C.'s (as he then was) judgment in Richardson at p. 281: ... the discussion to this point has concentrated on percentages, I should say that I question whether that is the right way to define the issue. The question "what is the reasonable fee?" must be answered, not as a percentage, but in dollars. A fee of some $2.2 million is, the Public Trustee submits, too many dollars. [57] Richardson is distinguishable upon a number of important grounds. In that case, counsel for the lawyer and the Public Trustee made a joint proposal that a reasonable fee would be equivalent to 20%. But more importantly, the Public Trustee took the position that it was a case in which the defendant effectively had admitted liability. That is not so in the case at bar where, as I have said, causation was a critical issue vehemently contested by the defendants until the last minute. [58] In this case the factors considered in Harrington as well as those set out in Yule favour the court approving a fee which represents a substantial premium. That premium must, however, be reasonable when expressed in dollars. It must not cross that elusive line separating what is reasonable from what is exorbitant. [59] As Chief Justice Esson noted in Richardson, some comparison with Harrington is necessary. The case at bar was more difficult, fraught with more risk, settled closer to the trial date, was an excellent settlement, and required considerable time and effort. I note that while in Harrington the lawyers' estimate of time was not accepted by the court, here I accept counsels' estimates of time and observe that counsel have voluntarily reduced the percentage set out in the continency agreement. [60] I have also found a comparison with the situation in Chong useful. The infant plaintiff in that case also sustained catastrophic injuries at the time of her birth. The action settled for $2.5 million after six days of trial. Counsel voluntarily reduced the fee from 33-1/3% to 30% or $750,000. The value of the recorded billable hours was just under $500,000. Taylor J. found the issues complex and difficult, and the counsel work outstanding. He found that a reasonable fee was $750,000. The "premium", then, was 50% or $250,000. [61] In Lew the plaintiff sustained serious brain injury during the course of surgery performed under a general anesthetic. The settlement was $3 million. The court approved a fee of $930,000 proposed by counsel after voluntarily reducing the contingency agreement from 35% to 31%. Baker J. found the matter complex, noted the clients were satisfied with the proposed fee, and found nothing that would provide a basis for the court to interfere with the contractual arrangements made between the parties. [62] The award of damages in Audet, also involving medical negligence claimed by an infant plaintiff, was set after trial at approximately $1.95 million. Pitfield J. considered the case "one of moderate complexity and difficulty" and concluded it did not warrant the fee set out in the contingency agreement for 35%. He found $550,000, about 28%, was reasonable in the circumstances. [63] Another factor which I take into account is that in this case the fee is to be split among three law firms. That fact is not a result of a series of law firms handling the case one at a time for a period and then turning it over to another firm, a situation one often sees. Rather, the complexity of the case was such that a number of counsel from all three firms were required to deal with the extensive investigation and plethora of legal issues which arose. Counsel from each of the firms remained significantly involved until the settlement. There is no suggestion this was not necessary. [64] In my view, the case at bar raised issues more complex, more difficult and involving more risk than those in Chong, Lew or Audet. There are several factors which justify a larger "premium" in this case. These include plaintiffs' counsels' persistence in the face of the early difficulties in the investigatory stage, the recalcitrance of the defendant hospital, the determination to continue despite the contrary opinion of two reputable law firms, the diligence with which counsel pursued critical expert opinions and rebuttal evidence, the manifest skill they brought to bear, their success in defeating myriad attempts to delay the trial in the weeks immediately before it was set to commence, the substantial voluntary reduction in their fee as proposed, and their success in achieving the largest such settlement to date. I add that approving the fee will not impinge upon the funds set aside for the infant plaintiff's future care. [65] This case was replete with true contingencies. The Guardian ad litem voluntarily entered an agreement providing 33- 1/3% to counsel. She had good reason to do so. Not only have counsel obtained the highest settlement ever achieved in a case of this kind, they have voluntarily reduced the fee to the extent that approving the proposed fee will not impair the substantial funds provided for the future care of the infant plaintiff. [66] Having said this, I am left with the admonition in Richardson, that the determination of what fee is reasonable must be answered in dollars rather than in a percentage. If this be the largest such settlement in this province, given the difficulties, complexities and risks I have discussed, the counsel fee should reflect that fact. Nevertheless, I conclude that given the magnitude of the numbers under consideration, expressing the fee in percentage terms results in an amount that is unreasonable. Expressed in dollars, I conclude a reasonable fee is $1,800,000. On the authorities provided to me by counsel, even at this reduced figure a fee including a premium of this magnitude is significantly larger than that in any infant settlement approved to date. In this case, that is appropriate. Should the file be sealed? [67] Counsel for the Vancouver Hospital defendants submits the proceedings with respect to the approval of the settlement should not be disclosed and the file should be sealed. The heart of his submission is that if this were a settlement between parties neither of whom were under a legal disability, there would no question the settlement would remain confidential. Such settlements are routinely negotiated. They result in a withdrawal of the action and the terms of the settlement, where there is a confidentiality clause, remain private. [68] The settlement in this case included a confidentiality clause. The plaintiffs take no position on this aspect of the case. The Public Trustee opposes the sealing of the file. [69] In K.V.P. v. T.E. (14 May, 1998) Vancouver F970348 (B.C.S.C.), Loo J. considered the law in the context of a matrimonial case. She concluded that a file should not be sealed unless it could be demonstrated there is "a real and substantial risk" the applicant "will be irreparably or significantly harmed" in the event it is not. [70] I conclude the file should not be sealed. The settlement approval proceedings were conducted in camera and in the absence of counsel for the defendants. There is good reason for this. Should the settlement have not met with the approval of the court, and a trial followed, it would be contrary to the effectiveness of the advocacy system for defendants' counsel to have been party to the disclosure by plaintiffs' counsel of the strengths and weaknesses of the plaintiffs' case, disclosure necessary to such settlement approval proceedings. Once the settlement is approved, that justification for closed proceedings falls away. [71] Mr. Grauer emphasizes he is not seeking the sealing of the entire file. Rather he asks only that the September 29, 1998 order approving the settlement, together with the material filed on that application, including the comments of the Public Trustee, be sealed. [72] He argues with some force that to open that portion of the file in contravention of the confidentiality clause would be contrary to the long articulated policy of the courts to encourage settlement. He says the interests of justice, and particularly of infants, are best served by a policy of encouraging settlements by permitting infants, like other litigants, the benefits of agreeing upon appropriate legal advice to keep the terms confidential. He submits that in this case the confidentiality aspect was of real value to the defendants and, absent that clause, the settlement may have been much less favourable to the infant plaintiff if settlement had been reached at all. The argument is compelling. [73] Nevertheless, the legislature has determined that settlements involving infants are different than settlements involving legally competent parties. In my view the purpose of s. 40, and in particular of s. 40(8), of the Infants Act is to require the court to intervene in settlement arrangements involving infants so the public may be assured guardians ad litem and defendants do not enter into settlements that may not reflect the best interests of infant plaintiffs. [74] To seal that very portion of the file would be to say that promulgation of a court order to the effect that an infant settlement has been approved fulfills the legislative intent. I am not persuaded this can be so. The legislature intended, in my view, that infant settlements would be open to scrutiny by the public in order that the public may be assured that the best interests of infant plaintiffs have been reasonably protected. The exercise of this review must of necessity permit access to the arguments put before the court, including the Public Trustee's written comments, and the reasons for the court accepting or rejecting those comments and other submissions. Such accountability requires openness. [75] I do not think it appropriate that the court enforce agreements which have the effect of defeating the intent of legislation. [76] Because counsel could refer me to no case directly on point, and recognizing the hospital defendants may wish to have this question considered by higher authority, I will order that those portions of the file remain sealed for 45 days from the date of these reasons. This will enable counsel for the defendants to take whatever steps they may consider necessary to their clients' interests. [77] Summary 1. The trust fund included in the settlement will be administered by Scotiatrust, subject to the conditions I have set out above. 2. Counsels' fees are fixed at $1,800,000. 3. The file will not be sealed, except that the order of this court pronounced September 29, 1998, as well as the material filed by the plaintiffs and the Public Trustee for that application September 24 and 29, 1998, and these reasons for judgment will remain sealed for 45 days from today's date. "L.P. Williamson, J." Mr. Justice Williamson