Bligh v Earthquake Commission

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-1333 [2016] NZHC 2619

BETWEEN

DEREK RICKY BLIGH

Plaintiff

AND

THE EARTHQUAKE COMMISSION First Defendant

AND

IAG NEW ZEALAND LIMITED Second Defendant

Hearing:	31 October 2016
Appearances:	A J D Ferguson and J S Morriss for Plaintiff N S Wood and J W Upson for First Defendant P M Smith and S J Connolly for Second Defendant
Judgment:	2 November 2016

JUDGMENT OF CLARK J

[1]      Mr Bligh sues the first and second defendants for earthquake damage to his home at 27-29 Waddington Road, Christchurch.  The matter has been set down for trial  since  December  2015  when  a  seven-day  fixture  commencing  Monday

31 October 2016 was allocated.

[2]      In accordance with a pre-trial direction given by Davidson J on 10 October

2016 I met with all counsel at Mr Bligh’s home at 8:30am on 31 October 2016 for the purpose of a site visit.   When I arrived counsel were engaged in settlement discussions.

[3]      On returning to the court following the site visit I was advised that plaintiff’s counsel wished to address me in chambers concerning a recent development.  The matter  was  called  shortly  before  11:30am  and  Mr Ferguson  advised  that  the

plaintiff’s litigation funder had terminated his agreement with Mr Bligh on the basis

BLIGH v THE EARTHQUAKE COMMISSION [2016] NZHC 2619 [2 November 2016]

of Mr Bligh’s “non-cooperation”.  Consequently Mr Bligh has no ability to pay his legal advisers and in the absence of any agreement about payment Mr Ferguson sought leave to withdraw.

[4]      In  response  to  my  concern  and  queries  about  Mr  Bligh,  Mr  Ferguson confirmed he had advised Mr Bligh:

(a)      that he, Mr Ferguson, would be making an application to the Court for leave to withdraw;

(b)      that Mr Bligh should be in attendance;

(c)      that Mr Bligh had been advised of the consequences of the withdrawal of funding; and

(d)in response to Mr Bligh saying he wished to arrange legal aid, that it was unlikely he could do that in the time available before the hearing was due to commence and that Mr Bligh should come and speak to the Court about it but it appeared he had chosen not to do so.

[5]      My further exchanges  with  Mr Ferguson  were  to  satisfy myself  that  the application to withdraw was not attributable to a breakdown in the relationship which might be reparable.

[6]      I viewed as inevitable the grant of Mr Ferguson’s application for leave to withdraw there being no basis upon which Mr Ferguson could be required to commit to  completion  of  a  seven-day  trial1   spread  over  a  fortnight.2      Before  formally granting the application I heard from Mr Wood and Mr Smith, counsel for the first and second defendants.

[7]      Counsel  had  only  become  aware  of  the  withdrawal  of  funding  and  of

Mr Ferguson’s  intended  application  to  withdraw  at  11:00am.    In  circumstances

1      Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 4.2.1.

2      Scheduling arrangements resulted in three days…