Bligh v Earthquake Commission

[2019] NZHC 2236

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2013-409-1333

[2019] NZHC 2236

BETWEEN

DEREK RICKY BLIGH

Plaintiff

AND

EARTHQUAKE COMMISSION

First Defendant

AND

IAG NEW ZEALAND LIMITED

Second Defendant

Hearing:

On the papers

Counsel:

G A Cameron and R J Lynn for Plaintiff

N S Wood and J W Upson for First Defendant
P M Smith and S J Connolly for Second Defendant
J Moss for Claims Resolution Service Ltd (Non-Party)

Judgment:

6 September 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

This judgment was delivered by me on 6 September at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 6 September 2019

BLIGH v EARTHQUAKE COMMISSION [2019] NZHC 2236 [6 September 2019]

INDEX

Background  [1]

Costs against Mr Bligh  [8]

The remaining costs claims  [16]

Quantification of EQC’s wasted costs  [19]

EQC’s and Mr Bligh’s costs on the wasted costs hearing  [24]
Costs reserved in the 18 December 2017 decision  [24]

Quantification of Mr Bligh’s costs against CRS on setting

aside judgment  [29]

Attendance on and briefing expert witnesses  [42]

Non-party costs application by EQC and IAG – costs claim

paras [16](c) and [17](a)  [48]
EQC’s application  [48]
IAG’s application  [49]

Non-party costs: the law  [50]

The parties’ respective positions  [58]

EQC  [58]
IAG – claim against CRS  [64]
CRS – response  [65]
EQC – reply to CRS  [66]
IAG – reply to CRS  [75]
CRS’s reply  [84]
EQC’s reply  [91]

Analysis  [94]

Quantum of CRS’s liability  [140]

Responsibility for costs as between Mr Bligh and CRS  [152]

IAG’s claim  [154]

Costs on this application  [160]

Background

[1]    These proceedings arose out of a claim by the late Mr Bligh (the plaintiff) against the Earthquake  Commission  (“EQC”)  (the  first  defendant)  and  IAG  New Zealand Ltd (“IAG”) (the second defendant) after the Canterbury Earthquake Sequence of 2011. In this judgment I will refer to Mr Bligh rather than to his estate. There is a new parties order making Geoffrey Falloon and Rebecca Jenkins, as executors of Mr Bligh’s estate, the plaintiffs in place of Mr Bligh.

[2]    Mr Bligh entered into a contract on 28 November 2012 for his claim to be funded by a litigation funder, Claims Resolution Services (“CRS”) (the non-party/respondent in this application).

[3]    In the lead up to hearing scheduled to start on 31 October 2016, Mr Bligh’s lawyers (Grant Shand, Barristers and Solicitors) began expressing doubts as to the merits of Mr Bligh’s claim. CRS disagreed with the lawyer’s assessment and provided some encouragement to Mr Bligh to proceed with his claim. Shortly before trial, CRS changed its view and advised Mr Bligh to settle because he had a weak claim. When Mr Bligh refused to settle, CRS exercised its contractual right to withdraw funding which it did on the morning the trial was to commence.

[4]    With funding withdrawn, Mr Bligh’s lawyer, Grant Shand, then withdrew from acting. Mr Bligh did not appear. The trial was aborted, and the Court entered judgment…