Bligh v Earthquake Commission

[2016] NZHC 2619

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 being allocated in the first week of trial and four days in the following week.

where Mr Bligh had not even turned up, notwithstanding that he had been advised by his counsel to do so, counsel sought judgment dismissing the proceeding.  There had been significant wasted costs and serious inconvenience and expense for witnesses including experts.

[8]      Mr Ferguson, albeit acknowledging his dubious standing to do so, urged the Court to consider that in not attending Mr Bligh was not being disrespectful.   He may  have  been  attempting  to  arrange  legal  aid.    I  draw  no  inferences  from Mr Bligh’s conduct.  I have little basis for doing so and I bear in mind that he is very ill.

[9]      The defendants, however, are entitled to certainty about what is to happen next.   Rule 10.8 covers this very situation and its terms are plain.   If a defendant appears but the plaintiff does not the defendant “is entitled to judgment” dismissing the proceeding.   On the basis of Mr Ferguson’s advice to the Court I am satisfied there has been no misunderstanding on the part of the plaintiff.  Mr Ferguson assured the Court that Mr Bligh had been fully informed and advised.  I propose to dismiss the proceeding.

[10]     The reservations I initially held about taking this step are ameliorated by the fact that r 10.9 permits the Court to set aside or vary the dismissal of a proceeding if there has been, or may have been, a miscarriage of justice.  Thus, Mr Bligh is free to make an application to have this judgment set aside if he is able to demonstrate that grounds exist.

[11]     That  a  seven-day  fixture  can  be  so  disrupted  by  a  funding  arrangement unknown to the parties or the Court is concerning.  There are obvious repercussions for a plaintiff but there are also implications for the management and allocation of limited judicial resources.  In Waterhouse v Contractors Bonding Ltd3  the Supreme Court considered the existence of a litigation funder and the funder’s identity should be disclosed to the other party, or parties, when litigation is commenced as should the location of the funder and its amenability to the jurisdiction of the New Zealand courts.   The non-funded party is entitled to know of the existence of a litigation

funder before the party can decide, for example, whether to make an application for security for costs and an application for costs.  So too is the Court entitled to know.

[68]      In addition, as a matter of principle, we consider that the courts (and the other party or parties) are entitled to know the identity of the “real parties” to the litigation.

[12]     In light of the potential vulnerability of litigation funders to third party costs awards4 litigation funders may consider it prudent to ensure that their involvement is brought to the attention of parties and the courts.

[13]     In the course of finalising this judgment I received a memorandum filed on behalf of the plaintiff.  Mr Bligh has instructed a new solicitor, Grant Cameron of GCA Lawyers.    The  thrust  of  the  memorandum,  signed  by  Mr  Lynn  of  GCA Lawyers, is to seek an adjournment of the proceeding and also an urgent fixture given  the  plaintiff’s  serious  ill  health.    He  is  suffering  from  terminal  cancer. Mr Lynn advises that it is not possible to inform the Court at this stage when the plaintiff  may  be  in  a  position  to  reconvene  the  hearing.    A case  management conference is requested.

[14]     Mr Lynn’s memorandum proceeds on the basis of instructions from Mr Bligh including an explanation as to why he was not in Court when counsel sought leave to withdraw.  Because it is an important point, and the explanation is at odds with the explanation given by Mr Ferguson, I set out the relevant paragraph of Mr Lynn’s memorandum which was emailed to the registry on the evening of 31 October.

In the time available the Plaintiff has briefly explained:

The Plaintiff was not in Court when this [withdrawal of counsel] occurred. He had been lead to believe through his Counsel that he should remain at the property to which these proceedings relate to meet an engineer. This appears to  have  been  a result  of a  break down  in  communications  between the Plaintiff and Counsel and no disrespect to the Court was intended.

[15]     Mr Ferguson has responded to correct one factual aspect of the memorandum. As it is the correction of a key fact I set out Mr Ferguson’s response in full.

On 31 October 2016 counsel for the plaintiff advised the plaintiff that he had to attend the Court for the hearing.  He was specifically advised not to wait to meet with the engineer who was looking at the property that morning.

After counsel for the plaintiff was informed that the funder had cancelled its contract with the plaintiff, counsel told the plaintiff again not to wait for the engineer but go to the Court for the hearing.

[16]     I accept Mr Ferguson’s account, as I did when he provided it.  I accept also that Mr Bligh meant no disrespect to the Court but the fact remains he failed to appear. And the decision not to appear was made in the face of his counsel’s advice.

[17]     It  seems  to  me  that  an  attempt  is  now  made  by  Mr  Bligh  to  offer  an explanation for his non-appearance which suggests a misunderstanding of the type which sometimes leads a court to stand a matter down while inquiries are made and to adjourn the trial.

[18]     A joint memorandum from counsel for the defendants records the defendants’

continued opposition to adjournment.

[19]     I  do  not  consider  an   adjournment  of  the  trial  is  warranted  in   the circumstances of this case.  A court faced with an application for adjournment must take account  of the  interests  of  other  litigants  as well  as  the  public  interest  in achieving the most efficient use of court resources.  The proceeding has been afoot since 2013.  The defendants are entitled to certainty and to judgment under r 10.8. Any miscarriage of justice thought to arise from that course may be addressed by an application to set this judgment aside.

Result

[20]     The following orders are made:

(a)      Mr Ferguson is given leave to withdraw.

(b)      The   defendants   are   entitled   to   judgment   pursuant   to   r 10.8.

Accordingly, the proceeding is dismissed.

(c)       Costs are reserved. The parties may submit memoranda.

Karen Clark J

Solicitors:

Grant Shand, Christchurch for Plaintiff

Chapman Tripp, Wellington for First Defendant

Duncan Cotterill, Auckland for Second Defendant