Driver v Radio New Zealand Ltd

[2020] NZHC 3398

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-443

[2020] NZHC 3398

BETWEEN

DENISE DRIVER

Plaintiff

AND

RADIO NEW ZEALAND LIMITED

First Defendant

STUFF LIMITED
Second Defendant

TELEVISION NEW ZEALAND LIMITED
Third Defendant

MEDIAWORKS HOLDINGS LIMITED

Fourth Defendant

Appearances:	P McKnight and A Romanos for plaintiff D Salmon and D Nilsson for defendants
Judgment:	18 December 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[On the papers]

[1]    In my judgment of 11 November 2020, I dealt with three interlocutory applications – I dismissed an application by the plaintiff for an order setting aside or varying an earlier order for security for costs; I dismissed an application by the plaintiff for an order striking out affirmative defences pleaded by each of the four defendants; and I made directions on an application by the defendants concerning discovery. It will be evident from that description of my judgment that the defendants were largely successful.

DRIVER v RADIO NEW ZEALAND LIMITED [2020] NZHC 3398 [18 December 2020]

[2]The defendants now seek costs.

[3]    Rule 14.8 of the High Court Rules 2016 provides that costs in interlocutory proceedings  should  be  resolved  at  the  conclusion  of  those  proceedings,  and  Mr McKnight and Mr Romanos for the plaintiff do not resist the settlement of costs at this stage.

[4]The defendants seek costs on a 2B basis, but contend for a substantial uplift.

[5]    The defendants’ solicitors calculate 2B costs at $14,101, and claim disbursements of $2,351.20.

[6]    The only aspect of the defendants’ calculations with which the plaintiff takes issue is the allowance for two counsel. The plaintiff says that this was a straightforward interlocutory hearing, that either Mr Salmond or Mr Nilsson could have dealt with it, and that two counsel were not necessary.

[7]    As to this, the defendants say that Mr Salmon and Mr Nilsson both appeared on the matter and contributed to the oral argument.

[8]    It seems to me that what is important is the nature of the argument rather than the point in the proceeding at which it occurred. The hearing was certainly interlocutory, but it  was  not  without  its  complications.  Both  Mr  Salmon  and  Mr Nilsson contributed to the argument. In my view, it is appropriate to certify for second counsel and I do so.

[9]    The defendants contend for a 50 per cent uplift on 2B costs in relation to the plaintiff’s application to strike out the affirmative defences and their application for discovery. They rely on r 14.6 of the High Court Rules and Bradbury v Westpac Banking Corporation1 and Commissioner of Inland Revenue v Chesterfields Preschools Ltd2 where the Court of Appeal said that increased costs may be ordered where a party has not acted reasonably thereby contributing to the time and expense

1      Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400 (Court of Appeal) at [27].

2      Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400 at [165].

of the proceeding. Here, the defendants say that the plaintiff did not act reasonably because her application to strike out the defendants’ affirmative defences was doomed to failure and she was unreasonable in resisting the defendants’ contention that documentation as to the terms of settlements with certain parties who are no longer involved in the litigation was unjustified.

[10]   The philosophy behind the costs regime in sub-pt 1 of pt 14 of the High Court Rules is essentially that costs – in interlocutory and substantive proceedings – should be predictable, so that parties engaging in litigation can reliably assess in advance what the cost consequences of various outcomes are likely to be. Having finally abandoned the old ad valorem costs regime, scale costs are now designed to reflect a certain proportion (approximately two thirds) of what the litigants’ actual costs should be or would normally be expected to be.

[11]   It is true that the Court retains an overarching discretion, and there is provision for increased and decreased costs. However, it appears to me to be important in achieving the objective of the regime for the Court to resist making orders for increased or decreased costs other than in exceptional circumstances. Certainly, the fact that one side has been wholly successful and the other side wholly unsuccessful is not a basis for departure from scale costs, even if, with the benefit of hindsight, it appears the Court had little difficulty in dismissing the case for the unsuccessful party.

[12]   Any other approach it seems to me would risk costs becoming unpredictable and another regular source of contention that would only lead to further costs being incurred.

[13]   I am not convinced that this is a case in which the Court would be justified in making an increased costs order. It is true that the defendants were successful on all three issues. It is true also that I dismissed the plaintiff’s contentions on the relevant aspects of the case without any real difficulty. However, I do not accept that the plaintiff or her solicitors or counsel acted unreasonably so as to justify an increased costs award.

[14]   The third point raised on the plaintiff’s behalf is that, because she has, apparently, since the hearing, settled her claim with two of the four remaining defendants (Radio New Zealand and Mediaworks Holdings), that should affect the quantum of the costs order made.

[15]   I  can  see  that  if,  since  the  hearing,  the  plaintiff   has   settled   with Radio New Zealand or Mediaworks Holdings on the basis that one or either or both those parties will not seek costs, then a cost order in favour of those defendants might give rise to confusion. That, however, does not seem to me to be something to which the Court can have regard in making a costs award. Rather, it is a contractual issue between the plaintiff and those parties.

[16]   For those reasons, I order that the plaintiff pay scale costs in the sum of $14,101 together with disbursements in the sum of $2,351.20 that is to say a total of $16,452.20 by way of costs to the defendants.

[17]   The defendants also ask for an order that the monies already paid to the Registrar as security for costs be released. I have already made such an order by minute dated 8 December 2020, following  a  mention  of  the  case  in  the Associate Judge’s list that day.

Associate Judge Johnston

Solicitors:

Langford Law, Wellington for plaintiff

LeeSalmonLong, Auckland for defendants