Cripps v Attorney-General - [2024] NZHC 679

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV- 2020-485-718

[2024] NZHC 679

BETWEEN
KARMA CRIPPS

First Applicant

MIHI BASSETT
Second Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing: On the papers

Appearances:

D A Ewen for Applicants D Jones for Respondent

Judgment:

25 March 2024

JUDGMENT OF CHURCHMAN J

[Costs]

Introduction

[1] The applicants seek to recover costs for the application for interim relief, the substantive judicial review, and an apportionment of costs described as having been “thrown away” in March 2021 due to the adjournment of the initial hearing.

[2] The proceedings to which the costs application relate were heard by Ellis J, but, with her appointment to the Court of Appeal, the costs application has been referred to me as duty Judge.

CRIPPS v ATTORNEY-GENERAL [2024] NZHC 679 [25 March 2024]

Background

[3] On 1 December 2020, Ms Cripps (a serving prisoner) filed an application for judicial review against the Attorney General (the respondent) for use of the high volume pepper spray dispenser “Cell Buster” in New Zealand Prisons. The applicant was later joined in these proceedings by Ms Mihi Bassett (also a prisoner) (together with Ms Cripps, the applicants). Ms Cripps was in receipt of a grant of legal aid. Ms Bassett was not.

[4] In a judgment dated 30 June 2022, Ellis J determined that the applicants were successful in respect of the second of three causes of action raised, making declarations that, when authorising the use of Cell Buster, successive Ministers of Corrections could not have been satisfied that its use was consistent with the humane treatment of prisoners.1 It was noted in that decision that 2B costs should follow the event, subject to the applicants’ legal aid position.2

Costs categorisation

[5] The parties agree with Ellis J’s indication that this matter should be categorised as a 2B proceeding. However, the applicants seek an uplift on 2B scale costs.

Uplift for general importance and lack of candour

Parties’ submissions

[6] The applicants seek a 50 per cent uplift for a combination of two factors. First, the proceeding was of general importance in vindicating the rights of prisoners for past infringements and protecting them in the future. Second, what is said to be Corrections’ lack of candour in the evidence regarding the flawed road test of Cell Buster. The relevant evidence of this was contained in the affidavit of one of the Corrections’ staff who took part in the Cell Buster test, the results of which were sent to the Minister who ultimately made the decision. In his affidavit evidence, the staff member minimised the degree of body cover he had during the test, stating that he was

1 Cripps v Attorney-General [2022] NZHC 1532 at [244].
2 At [245].

wearing overalls. Cross-examination revealed that he was in fact wearing full uniform, a paper ‘has-mat’ suit over that and a towel over his face.

[7] The applicants also identified what they categorised as a wider reticence to disclose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cripps v Attorney-General

Details

AGLC: Cripps v Attorney-General [2024] NZHC 679
Case: [2024] NZHC 679
Decision Date: 25 March 2024

CaseChat Overview and Summary

The High Court of New Zealand considered an application for costs arising from a judicial review brought by two prisoners, Karma Cripps and Mihi Bassett, against the Attorney-General over the use of pepper spray in New Zealand prisons. The applicants sought costs for the application for interim relief, the substantive judicial review, and costs "thrown away" due to an adjournment, along with an uplift on 2B scale costs due to the general importance of the proceeding and the respondent's alleged lack of candour. The court categorised the proceeding as 2B but noted that the general importance and lack of candour were less significant than in previous cases, leading to a 15% uplift on 2B scale costs.

The court rejected the applicants' claim for costs related to the unsuccessful interim relief application, stating that exceptional circumstances were required to award such costs. The applicants also sought costs for a hearing that was adjourned by mutual consent, but the court declined to award wasted costs since the adjournment was due to the respondent's need to reconsider regulations, not due to late disclosure of evidence as the applicants claimed.

The court was unable to finally dispose of the costs application as the applicants had not provided details of their actual costs incurred, which needed to be considered to ensure any award did not exceed those costs. The applicants were ordered to provide the court with the relevant information within 14 days.

The final orders included fixing costs at 2B with a 15% uplift and instructing the applicants to provide details of the costs billed to legal aid and any personal costs incurred by Ms Bassett. This would allow the court to approve the costs if they were within the specified limit.

Orders