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 the full story regarding Cell Buster to the responsible Ministers. However, this issue did not affect the judicial review proceeding and so is irrelevant from a costs perspective.

[8]                  The respondent accepts that the proceedings were of general importance, but submits that the evidence discussed by the appellant was insignificant, with neither the evidence nor alleged lack of candour mentioned in the substantive judgment. The respondent therefore submits that an uplift of 15 per cent would be appropriate.

Legal principles

[9]                  Rule 14.6(3)(c) of the High Court Rules 2016 provides for an increase in costs where the proceeding is of general importance to persons other than the parties and it was reasonable for the party claiming costs to bring or participate in the proceedings in the interests of those affected. Rule 14.6(3)(b)(iii) provides for an increase in costs where one party unreasonably fails to admit facts, contributing to the time or expense of the proceeding.

[10]              Both parties’ submissions refer extensively to Wallace v Corrections on this issue.3 Wallace was another judicial review case challenging the transfer of sentenced women prisoners out of Arohata Prison to prisons in Auckland and Christchurch, and the effective closure of Arohata. Cooke J uplifted costs as the matter was one of general importance, with the applicant bringing the proceeding on behalf of all of the women prisoners that had been transferred in that instance and the outcome of the proceedings vindicated rights under the New Zealand Bill of Rights Act 1990.4 The fact that the applicant group (prisoners) were a disadvantaged group was also significant.5

3      Wallace v Chief Executive of the Department of Corrections [2023] NZHC 2830.

4 At [10].

5 At [10].

[11]              Cooke J also imposed an uplift under r 14.6(3)(b)(iii) after rejecting the decision-maker’s affidavit evidence in relation to a factual matter that was decisive for one of the grounds of review.6 Cross-examination was required due to the factual dispute, which Cooke J found had increased the cost and length of the litigation.7 It was also significant that, had the true factual position been known at the interim relief hearing, the application may have been granted. Lastly, Cooke J found that the respondent’s evidence may not have been consistent with the duty of candour expected of the Crown.

[12]The combination of these factors was found to warrant an uplift of 25 per cent.

Analysis

[13]              Both parties accept that an uplift should be given for general importance here. These proceedings enabled the Crown to regularise its relationship with other prisoners without further proceedings.8 The public interest aspect of the current proceeding is arguably as significant as that present in Wallace due to the harm that may have been inflicted on prisoners had the applicant not brought the proceedings.

[14]              In relation to the Crown’s alleged lack of candour, the current proceedings have significant differences to Wallace. First, and most significantly, the factual matter here appears to be far less material than was the case in Wallace. The factual dispute in Wallace was the basis of one of the grounds of review and was discussed in detail in the judgment.9 Here, as the respondent submits, the factual issue was relatively immaterial. As the respondent notes, it was not mentioned in Ellis J’s decision, nor did she give an indication that she was concerned about the candour of the respondent’s evidence.

[15]              Therefore, any lack of candour here was not of the scale present in Wallace and does not justify a separate uplift. Using Wallace as a guide and attempting to

6 At [9].

7 At [9].

8      See David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at [3.13].

9      Wallace, above n 3, at [6]–[12].

apply a similar uplift to reflect the public interest component, a 15 per cent uplift on 2B is appropriate.

Interim hearing

Parties’ submissions

[16]              The applicants also seek costs for the interlocutory application for interim relief. They note that they filed a memorandum seeking reservation of those costs to the trial Judge, arguing that the preparation required for the interim relief hearing crossed over substantially into the preparation for the substantive hearing, and was “far in excess” of the normal preparation required for an interlocutory hearing. The applicants argue that while the presumption is that costs on interlocutory proceedings are fixed and payable separate from the main proceeding, the nature of this application is closely analogous to an unsuccessful summary judgment application. This is because much of the substantive preparation for the case would have reused work done at the interim relief stage. The applicants contend that those costs would be lost if they are not recovered in the substantive costs determination, and so it would be just and equitable to include these costs in the costs order.

[17]              The respondent submits that there is no basis for granting costs for the interim application. This is because the applicants lost the interim application, with Ellis J suggesting in her decision that the costs should lie where they fall, reflecting the fact that the Court found for the respondent but only “by a fine margin”. It is submitted that there are no truly compelling factors present here to justify a reversal of the general approach to costs.

Legal principles

[18]              Rule 14.8 creates a presumption that costs on opposed interlocutory applications are to be fixed by the court when the application is determined. In this way, interlocutory applications are generally treated as distinct steps in the proceeding for the purposes of determining success. Rule 14.2(1)(a) incorporates the general principle that the party who fails with respect to an interlocutory application should pay costs to the party who succeeds.

[19]              Rule 14.8(3) dictates that this presumption does not apply to applications for summary judgment. This reflects the traditional approach of fixing costs only once the final result is known, therefore encouraging the use of the summary judgment mechanism to efficiently deal with proceedings.10

Analysis

[20]              I accept the respondent’s submission that exceptional circumstances would be required for a court to order costs to the losing applicant for an interim injunction. Ellis J’s interim judgment indicated her inclination to let the costs of the application lie where they fall.11 I see no good reason why this approach should not be taken.

[21]              The applicants claim that r 14.8(3) should apply here as the unsuccessful application for interim relief was similar to an unsuccessful summary judgment. However, critically, the interim judgment had no prospect of enabling the efficient disposal of the proceedings. The traditional rationale that justifies the delay in the fixing of costs for summary judgment is therefore not present here. Accordingly, I make no costs order regarding the application for interim injunction.

Costs “thrown away” due to adjournment

Parties’ positions

[22]              The applicants seek costs in respect of a hearing that was scheduled to commence on 17 March 2021 but was adjourned by mutual consent on 16 March 2021. The applicants assert that the adjournment occurred due to two factors. First, the late disclosure of complex and technical affidavit evidence, which left the applicants with insufficient preparation time. Second, the applicants assumed that the Department of Corrections would disestablish Cell Buster, but argue that this latter reason is irrelevant given the insufficient time to prepare. They say that the preparation for this hearing was wasted, as the rescheduled trial, which took place a year later, required substantial duplication of work by way of refresher.

10     Bullock and Mullins, above n 8, at [2.52].

11     Cripps v Attorney-General [2020] NZHC 3523 at [71].

[23]              The respondent opposes this aspect of the application, submitting that the hearing was not vacated due to late service of evidence. Instead, it was vacated at the request of both parties so that the respondent could consider re-making the regulations that were subject to challenge. The adjournment was therefore appropriate and in the applicants’ interests. The respondent acknowledges that some of the evidence was filed late, but submit that there were a number of other mechanisms available to the applicants to ensure the late service of evidence did not give rise to prejudice.

Analysis

[24]              The consent memorandum advising the Court of the parties’ agreement to adjourn the hearing stated that the parties had agreed to progress the substantive issues underpinning the proceeding in an alternative manner, noting that Ara Poutama intended to advise the Minister of Corrections to recommend to the Governor-General that amendments be made to the Corrections Regulations authorising the use of pepper spray. There is no mention of evidence being filed late or a lack of preparedness for trial.

[25]              In light of the parties’ disagreement regarding the reasons for adjournment, I am left with no option but to rely on what was written in the consent memorandum. Therefore, I decline to make a wasted costs order for the hearing that had been scheduled to commence on 17 March 2021.

Costs shall not exceed costs actually incurred by the applicants

[26]              A costs order in favour of a legally aided party shall not exceed the costs actually incurred by that party.12 Ms Cripps was legally aided. The respondent believes it is likely that much of the legal costs were covered by legal aid.

[27]As Cooke J said in Wallace:13

… The actual legal aid payments for the proceedings to date will accordingly operate as a ceiling on the amount that may be recovered under the costs award.

12     Curtis v Commonwealth of Australia [2019] NZCA 126 at [22].

13     Wallace, above n 3, at [12].

[28]              The respondent’s request that the applicants provide evidence of the costs actually incurred and which costs were incurred on legal aid and by Ms Bassett personally. The applicants have not provided the Court with details of the costs billed to legal aid. They need to do that so that the Court can be assured that any amount of costs awarded does not exceed the actual costs incurred.

Conclusion

[29]              Accordingly, I am not able to finally dispose of the costs application. However I am able to make the following orders:

(a)Costs are fixed at 2B with a 15 per cent uplift;

(b)Within 14 days of the date of this decision, the applicants are to provide the Court with details of the total costs rendered to legal aid and to  Ms Bassett (if any). If those costs are less than or equal to 2B costs with a 15 per cent uplift, they can be approved.

Churchman J

Solicitors:

Cooper Legal, Wellington for Applicants Crown Law, Wellington for Respondent