C v Police HC Wellington CIV-2005-485-245

[2006] NZHC 196

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2005-485-245

BETWEEN  C

Plaintiff

ANDNEW ZEALAND POLICE First Defendant

ANDW

Second Defendant

ANDCHUBB NEW ZEALAND LIMITED Third Defendant

Judgment:      9 March 2006

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 1.00pm on the 9th day of March 2006.

JUDGMENT AS TO COSTS OF ASSOCIATE JUDGE D.I. GENDALL

[1]      On 28 November 2005 on the application of the plaintiff, leave was granted to the plaintiff to withdraw these proceedings.

[2]      In a Minute I issued on that date I indicated that if there was any issue as to costs, the parties were to file appropriate memoranda, and unless a request to be heard on the issue was made, I would decide the question of costs on the papers.

[3]      Counsel for the third defendant has filed a memorandum as to costs dated 12

December 2005.  Counsel for the second defendant has also filed a memorandum as to costs dated 9 December 2005.  The first defendant has indicated that it does not

seek costs.

C V NEW ZEALAND POLICE AND ORS HC WN CIV-2005-485-245 9 March 2006

[4]      The plaintiff forwarded a letter dated 27 February 2006 which provided his submissions on this issue of costs.

[5]      On 8 March 2006, at the request of the plaintiff, I convened a telephone conference with all parties to allow an opportunity for further submissions on costs.

[6]      Further submissions were made.  Also on 8 March 2006 the plaintiff has filed a number of documents being a copy of his legal aid file and requested that these be considered too on the costs issue.

[7]      I have now considered all this material, together with the memoranda   and correspondence filed, and the oral submissions made by all parties.  My decision on the costs question follows.

[8]      The  plaintiff’s  Statement  of  Claim  in  this  matter  was  filed  around  15

February 2005.

[9]      Around that point, as I understand it, the plaintiff applied for legal aid for these proceedings.

[10]     Applications to strike out the Statement of Claim were brought by the first defendant on 22 March 2005, by the third defendant on 8 November 2005 and by the

2nd defendant on 28 November 2005.

[11]     Subsequently, on 28 November 2005 the plaintiff withdrew his claim against each of the defendants.

[12]     As I have noted, the first defendant does not seek costs against the plaintiff. The second defendant and the third defendant, however, do seek costs, in each case on a category 2B basis, together with disbursements.

[13]     The plaintiff opposes any award of costs.

[14]     Significantly, the plaintiff has never received a grant of legal aid for these proceedings.  On 19 September 2005 the Legal Services Agency finally declined the

plaintiff’s  application.     The  application  was  declined  under  s9(4)(d)(i)  Legal Services Act 2000.  The Legal Services Agency found that the plaintiff’s prospects of success in this proceeding were not sufficient to justify the grant of legal aid which was sought.

[15]     In declining legal aid, the Legal Services Agency in its 19 September 2005 letter to the plaintiff’s then counsel commented:

The proceedings are without merit.   A reasonable person would not pay a lawyer to pursue them.

[16]     That said, and having considered all the material placed before the Court, I reach a similar conclusion.  I am satisfied that these proceedings had no prospect of success and should not have been commenced.

[17]     And, as the plaintiff has himself discontinued these proceedings, the starting point for any costs consideration must be Rule 476C High Court Rules which states:

Unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[18]     Under the circumstances here, I am satisfied that the plaintiff has not been able to put forward any persuasive argument, nor does any reason exist to depart from this standard approach specified in R.476C.  The plaintiff should therefore meet the costs of the second and third defendants.  To commence and pursue proceedings with little or no merit only to discontinue them after some nine months is a serious matter and should be reflected in an award of costs.

[19]     Accordingly, an order is to follow that the plaintiff is to pay to the second defendant and the third defendant costs calculated on a 2B basis, together with disbursements as approved by the Registrar of and incidental to this proceeding.

[20]     As to the scale costs and disbursements involved, the second defendant and the third defendant have filed schedules setting out these figures.

[21]     Having considered those schedules, orders are now made that:

a)        The  plaintiff  is  to  pay  to  the  second  defendant  2B  costs  on  this proceeding   totalling   $4,640.00,   together   with   disbursements   of

$40.00, making a total of $4,680.00.

b)The  plaintiff  is  to  pay  to  the  third  defendant  2B  costs  on  this proceeding   totalling   $5,510.00,   together   with   disbursements   of

$600.00, making a total of $6,110.00.

Associate Judge D.I. Gendall

Solicitors:

Crown Law Office, Wellington for First Defendant

Thomas Dewar Sziranyi Letts, Lower Hutt for Second Defendant
Jones Fee, Auckland for Third Defendant