Biddle v Pooley

[2017] NZHC 1941

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000447 [2017] NZHC 1941

BETWEEN

CHEYENNE RANA BIDDLE

Plaintiff

AND

BRUCE POOLEY, CHARLOTTE POOLEY, DANIEL POOLEY and FRANCES POOLEY

First Defendants

AND

CHRISTCHURCH CITY COUNCIL Second Defendant

Hearing:	On the papers
Counsel:	P N Allan for the Plaintiff G P Tyrrell for the First Defendants P L Leeming for the Second Defendant
Judgment:	15 August 2017

JUDGMENT OF NATION J AS TO COSTS

[1]      Jamie  Pooley  died  in  tragic  circumstances  on  14  May  2011.     After discussions within his family when his partner, Ms Biddle, was present, his funeral was held in Christchurch and he was buried at the Memorial Park Cemetery where his family, including his partner, were able to visit his grave.  Nearly six years after his death, Ms Biddle, through a barrister, wrote to Jamie’s family raising the possibility of disinterring Jamie’s body and bringing a claim to obtain control of taonga, a taiaha and two tewhatewha, that Jamie had always left in the home of his parents.

[2]      On 6 September 2013, the plaintiff’s solicitors advised that she had been granted legal aid for the proceedings.

BIDDLE v POOLEY [2017] NZHC 1941 [15 August 2017]

[3]      Proceedings were served on one of the named defendants approximately 16 months later, on 28 December 2014.  A statement of defence was filed four months later in April 2015 after the defendants had obtained legal aid.

[4]     There were significant further delays in Ms Biddle progressing these proceedings.  The defendants raised issues over defects in the pleadings at the time of a first case management conference in May 2015.  On 14 September 2015, Ms Biddle was directed to file an amended statement of claim within 10 days.  It was not filed until December 2015, after the defendants had sought directions requiring the filing of an amended statement of claim on an “unless” basis.

[5]      There were delays in Ms Biddle filing her briefs of evidence and on 31 May

2016 a Judge directed she was to file her briefs by 24 June 2016 or the proceeding would be stayed.  She then filed her evidence.  It comprised just two and a half pages in  the  form  of  an  unsworn  affidavit.    She  did  not  have  any  expert  evidence supporting her claim although she claimed what she was seeking was required by tikanga principles.

[6]      Ultimately, there was a trial over three days commencing on 31 October

2016.  Judgment was given for the defendants.1  They now seek costs. [7]     Both Ms Biddle and the defendants were legally aided.

[8]      Ms  Biddle’s  counsel  has  taken  no  issue  with  the  submission  for  the defendants that, on a 2B basis, the defendants would have been entitled to costs of

$39,136.    The  actual  costs  paid  by  legal  aid  for  the  defendants  have  totalled

$31,709.21, up to and including their counsel’s memorandum as to costs.   It is

anticipated there will be further costs incurred in relation to this decision.

[9]      It has been submitted for the defendants that there would have been good grounds for the defendants to seek costs in excess of 2B schedule costs.   They nevertheless recognised there was no point in seeking an award of costs on such a

basis because no award can be for more than the costs actually incurred.

1      Biddle v Pooley [2017] NZHC 338.

[10]     Had the plaintiff not been on legal aid, the defendants would have been entitled to costs on at least a 2B basis for the total amount that has been paid by legal aid and for such further amount as legal aid will pay for attendances arising out of this further judgment as to costs.

[11]     This application must however be considered in accordance with s 45 Legal

Services Act 2011.  It states:

45   Liability of aided person for costs

(1)     If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.

(2)     No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.

(3)     In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:

(a)   any conduct that causes the other party to incur unnecessary cost:

(b)   any failure to comply with the procedural rules and orders of the court:

(c)   any misleading or deceitful conduct:

(d)   any unreasonable pursuit of 1 or more issues on which the aided person fails:

(e)   any  unreasonable  refusal  to  negotiate  a  settlement  or participate in alternative dispute resolution:

(f)   any other conduct that abuses the processes of the court.

(4)     Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.

(5)     If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would have been made against that person with respect to the proceedings if this section had not affected that person’s liability.

(6)     If an order for costs is made against a next friend or guardian ad litem of an aided person who is a minor or is mentally disordered, then—

(a)   that next friend or guardian ad litem has the benefit of this section; and

(b)   the means of the next friend or guardian ad litem are taken as being the means of the aided person.

[12]     For reasons canvassed in detail in my judgment of 6 March 2017, I consider these proceedings had little merit.  The prospects of the plaintiff obtaining the relief she was seeking were limited.  There were significant delays in her pursuit of the proceedings  and  a  number  of  failures  to  comply  with  directions  of  the  Court, resulting in further costs for the defendants through their solicitor having to take the initiative in getting matters back on track.

[13]     The pursuit of these proceedings was inevitably emotionally distressing for the defendants and destructive of family relationships.   It was apparent from the plaintiff’s evidence and other information that was given to the Court through counsels’ memoranda as the proceedings progressed that the plaintiff thought she had to pursue this claim for her own emotional or mental wellbeing. As the administrator of Jamie’s estate, she had the legal responsibility of considering matters more objectively than that.  She was given the opportunity during the trial to recognise the damage that was being done through a continuation of the hearing but chose not to take advantage of that opportunity.  She was not present in Court to hear some of the evidence that objectively should have encouraged her to reassess the stance she had taken.  She was not present to hear her counsel’s submissions or question which I raised as to the arguments that were being advanced for her.

[14]     Despite all of that, I am not going to make an order for costs against the plaintiff.   She is of limited financial means, on a benefit and caring for her two young sons with the help of her parents.  It is unlikely she would be able to meet any significant order for costs. The existence of an order could make it more difficult for Jamie  Pooley’s  family  have  a  real  relationship  with  his  two  young  sons,  a relationship which they want to have and which his children need and are entitled to.

[15]     The defendants’ application for an order for costs against the plaintiff is thus declined.

[16]     Applying s 45(5), I do make an order specifying that, if the plaintiff had not been legally aided and s 45 had not affected her liability, I would have made an order that she pay costs in the total sum for which Charlotte and Bruce Pooley incurred in costs as paid or payable by legal aid.  It was clear from the evidence that I heard in the proceedings that they were of limited financial means.  During the proceedings, they had the additional burden of Charlotte Pooley’s serious ill-health and, since the hearing, have had the sorrow and costs associated with her death.  Mr Pooley has no savings.

[17]     These proceedings were pursued by the plaintiff and were possible only with the support of legal aid.  The defendants also had the benefit of legal aid but, in all the circumstances, I consider there would be a real injustice if, by reason of the plaintiff’s impecuniosity, Bruce Pooley and/or the estate of Charlotte Pooley were now required to repay to legal aid the costs which they incurred in successfully defending these proceedings.

[18]     With Ms Biddle not having to personally meet any order for costs, I express the hope that all parties can now put behind them the ill-feeling that was generated through these proceedings and that, for the sake of Jamie Pooley’s children, progress will be made in improving the relationship which the children have with the Pooley family, particularly their grandfather Mr Bruce Pooley.

Solicitors:

Phillip Allan, Barrister, Christchurch

Weston Ward & Lascelles, Christchurch