British American Tobacco (New Zealand) Ltd v Legal Services Agency CA40/05

In the Court of Appeal of New Zealand, British American Tobacco (New Zealand) Limited and WD & HO Wills (New Zealand) Limited appealed against the decision of the Legal Services Agency (LSA) to continue the grant of legal aid previously made to Janice Pou in her proceedings against the tobacco companies. The appeal was dismissed, and the tobacco companies were ordered to pay a total of $12,000 in costs. The key issues in the appeal were whether Brandon and Kasey Pou, the executors of Janice Pou's estate, were concerned in the proceedings in a representative, fiduciary, or official capacity, and if the proviso to s 10(3) applied. The Court found that Brandon and Kasey Pou were not "concerned" in the proceedings in a representative, fiduciary, or official capacity, and therefore the proceedings were not subject to s 10(3). Even if the case was within s 10(3), the Court found that a conclusion that the proviso applies would be well open to the LSA. The Court also found that s 26(2)(a) is expressed in discretionary rather than mandatory terms, which allowed the LSA to exercise its discretion in favour of Brandon and Kasey Pou.