Ayers v LexisNexis NZ Limited

[2015] NZHC 3356

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-1274 [2015] NZHC 3356

BETWEEN

DANIEL FRANCIS AYERS

First Plaintiff

ELEMENTARY SOLUTIONS LIMITED Second Plaintiff

AND

LEXISNEXIS NZ LIMITED Defendant

On the papers
Judgment:	21 December 2015

JUDGMENT OF MALLON J (Costs)

[1]      On 27 October 2015 (with reasons given on 28 October 2015) I dismissed the

plaintiffs’ application for a review of orders made by Associate Judge Matthews on

8 September 2015.  I also made an order for costs in favour of the defendant with the quantum of costs to be the subject of submissions (the defendant seeking the opportunity to file written submissions on costs).

[2]      The defendant’s submissions seek costs not just in respect of the application for review, but also for the steps leading to and associated with Associate Judge Matthews’ orders.  I am not prepared to grant the latter.  The costs order I made was for the application for review.  Costs for other steps are for the Associate Judge to consider (if the defendant wishes to pursue an order for them at this stage) or can await consideration following the outcome of the substantive claim.

[3]      Costs on an opposed interlocutory application are to be fixed when the application is determined unless there are special circumstances to the contrary.  The

AYERS v LEXISNEXIS NZ LIMITED [2015] NZHC 3356 [21 December 2015]

special circumstances the plaintiffs seek to advance relate to their objection to the lateness at which the defendant raised the issue which gave rise to the amended pleading.  Irrespective of that point, however, the application for review was without merit.   The issue causing the plaintiffs concern related to a pleading against the second plaintiff and that pleading was stayed.  An application for an adjournment was the more appropriate course.

[4]      The  parties  are  essentially  agreed  that  if  scale  costs  are  to  be  ordered, category 2B applies.   The exception is that the defendant seeks 2C costs for the preparation of submissions on the basis that it was necessary to respond to the first plaintiff’s application to provide evidence by way of affidavit.  I decline to order 2C costs in respect of that step.  That application was related to the plaintiffs’ concerns which led to the application for review such that I do not consider it warrants the C band.

[5]      The  defendant  seeks  an  award  of  increased  costs  on  the  basis  that  the plaintiffs’ conduct added unnecessarily to the time and expense of the proceeding in general and the particular step in the proceeding.  I am not satisfied that increased costs should be ordered.  The defendant has cause to be frustrated by the plaintiffs’ refusal to provide the information sought, but in the end the ultimate relevance of that particular information will be determined when the substantive proceeding is determined.

[6]      The defendant seeks travel and accommodation costs for out of town counsel. Out of town counsel is instructed on the basis of his special expertise in defamation law.  However this was a routine interlocutory application where no special expertise was required.  Moreover briefing a local junior counsel would have been relatively straightforward  given  the  straightforward  basis  on  which  the  application  was opposed.  I therefore decline to award disbursements.

[7]      Accordingly costs are awarded to the defendant in the sum of $9,701.50 being the scale costs calculation as set out in the first plaintiff’s memorandum dated

18 November 2015.

[8]      In  accordance  with  my  earlier  directions  a  case  management  conference before an Associate Judge can now be arranged by the registry.

Mallon J