Ayers v LexisNexis New Zealand - [2015] NZHC 1348

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-1274 [2015] NZHC 1348

BETWEEN
DANIEL FRANCIS AYERS

First Plaintiff

ELEMENTARY SOLUTIONS LIMITED Second Plaintiff

AND

LEXISNEXIS NEW ZEALAND Defendant

Hearing: 27 May 2015

Counsel:

J Sumner and S Eglinton for Plaintiffs
D McLellan QC for Defendant

Judgment:

15 June 2015

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] The defendant (LexisNexis) applies for an order striking out claims for damages made by the second plaintiff (Elementary). LexisNexis also applies for an order for security for its costs, and an order that the proceeding be stayed pending payment of the security.

[2] In the event that the Court declines to strike out Elementary’s damages claim, LexisNexis asks for an order for further discovery, directed to a particular element of Elementary’s damages claim in respect of which Mr Ayers, the principal shareholder and director of Elementary, says that the plaintiffs do not have any relevant documents in their control.

[3] There is a difficulty with that assertion, as Mr Ayers made an affirmation on

7 May 2015 in which he stated (in respect of the relevant category of documents)

“there are no documents of this type that the plaintiffs seek to rely on.” Of course

the plaintiffs’ discovery obligations are not limited to documents on which they wish

DANIEL FRANCIS AYERS v LEXISNEXIS NEW ZEALAND [2015] NZHC 1348 [15 June 2015]

to rely; they are also required to disclose documents in their control that may adversely affect their case (or support LexisNexis’ case). In that sense Mr Ayers’ affidavit did not adequately respond to the request for further and better discovery.

[4] At the hearing, Mr Sumner undertook to obtain further instruction from the plaintiffs, and arrange for Mr Ayers to make a further affirmation (i) confirming that no documents in the relevant category are in the plaintiffs’ control (if that is the case) and (ii) describing the searches the plaintiffs have made to locate any such documents. If a further affidavit is filed deposing to those matters, Mr McLellan accepts that there will be no need for the Court to make any order on the further discovery application, except on the question of costs.

[5] I will address the strike-out and security for costs applications in turn.

Application by LexisNexis for an order striking out Elementary’s damages
claims

The background to the application

[6] The proceeding is a defamation claim, in which the plaintiffs seek damages in respect of statements made in two letters published by LexisNexis in NZ Lawyer magazine. The letters were written in response to an article written by Mr Ayers which appeared in the 1 May 2009 issue of NZ Lawyer, in which Mr Ayers expressed certain criticisms of software known as EnCase and EnScript. The publication of the article written by Mr Ayers attracted forceful opposing views, which were expressed in the two letters. The two letters were published in the 29 May 2009 edition of NZ Lawyer.

[7] The plaintiffs allege that these two letters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ayers v LexisNexis New Zealand

Details

AGLC: Ayers v LexisNexis New Zealand [2015] NZHC 1348
Case: [2015] NZHC 1348
Decision Date: 15 June 2015

CaseChat Overview and Summary

The case of Ayers v LexisNexis New Zealand involved a defamation claim brought by Daniel Francis Ayers and Elementary Solutions Limited against LexisNexis New Zealand. The defendants applied for an order striking out Elementary’s damages claim, for an order for security for costs, and an order for further discovery. The plaintiffs opposed these applications. The court considered the adequacy of the pleadings, the merits of the damages claim, and the financial circumstances of the plaintiffs in determining whether to grant the applications. The court found that while Elementary's damages claim was overly particularised, it was not to be struck out in its entirety. However, certain subparagraphs of the claim were struck out for being claims for special damages that should have been more specifically particularised. The court also found that the plaintiffs were likely able to pay any costs awarded to the defendants if they were unsuccessful at trial, and so dismissed the application for security for costs against Mr Ayers. However, the court found that Elementary was likely unable to pay any costs awarded, and so ordered that security for costs in the amount of $20,000 be paid within 21 days, or the proceeding would be stayed. The application for further discovery was reserved for later consideration.

Orders