Erwood v Holmes - [2017] NZHC 556

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2004-404-7211 [2017] NZHC 556

BETWEEN
ROBERT ERWOOD

Plaintiff

AND

JOHN ROBIN HOLMES First Defendant

ANTHONY DAVID BANBROOK Second Defendant

GRAEME EDWARD MINCHIN Third Defendant

Hearing:
23 November 2016

(on papers)

Appearances:

Ms Cooper for counsel appointed to assist the Court
Mr Erwood Plaintiff
Ms Keating for Mr Holmes - First Defendant
Mr Minchin - Third Defendant

Judgment:

23 March 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [LITIGATION GUARDIAN AND APPOINTMENT OF AMICUS]

This judgment was delivered by me on
27.03.17 at 10 a.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

ERWOOD v HOLMES & ORS [2017] NZHC 556 [23 March 2017]

Background

[1] Mr Erwood made investments in a mortgage business operated by a firm of solicitors, Renshaw and Edwards, between June 1988 and October 1989. Because of the dishonesty of those operating the mortgage scheme, he lost his entire investment of $185,276. He then instructed a firm of solicitors, Glasgow Harley, to bring proceedings against the New Zealand Law Society and an insurance company to recover his loss. He obtained judgment in that proceeding for $212,843.67 against the Law Society, but failed against the insurance company. The history of these proceedings is reasonably well known and does not need to be repeated in detail in this judgment.

[2] Mr Erwood eventually commenced proceedings in May 2002 against the lawyers who represented him in those proceedings, namely the firm Glasgow Harley and the barrister Ms Harley. Those proceedings were commenced in the Auckland High Court.1

[3] In that litigation, he pleaded a number of breaches of duty. One such breach was an alleged failure to apply to the High Court for appointment of a guardian at litem before trial. Mr Erwood was apparently mentally disordered at that time. Another breach concerned the alleged failure of the lawyers to advise Mr Erwood of offers that had been made to settle the litigation, which were significantly greater than the amount for which judgment was eventually entered. The course of the litigation which he alleged his solicitors negligently carried on is recounted in
Harley v McDonald.2 In that litigation, Mr Erwood was represented by the second

defendant to this proceeding as counsel. The third defendant was a litigation guardian who had been appointed to represent his interests.

[4] That litigation came to an end when a settlement was entered into following a judicial settlement conference on 25 November 2003. Mr Erwood did not attend the conference. Settlement was effected by agreement between the defendants and his
litigation guardian.

1 Erwood v Harley HC Auckland CIV-2002-404-001663, 15 December 2005.

[5] Prior to the judicial settlement conference, though, Mr Erwood had been assessed by a psychiatrist, Doctor Wettasinghe. The Doctor issued a report following the examination, which was dated 15 October 2003, expressing his opinion that Mr Erwood was not suffering from an active mental disorder and that he no longer required a litigation guardian.

[6] Mr Erwood…

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 Erwood v Holmes

Details

AGLC: Erwood v Holmes [2017] NZHC 556
Case: [2017] NZHC 556
Decision Date: 23 March 2017

CaseChat Overview and Summary

The case of Erwood v Holmes concerns Mr Erwood's claim against the three defendants for damages resulting from their alleged failure to advise him of offers to settle his litigation and for their failure to apply for the appointment of a guardian at litem before trial. Mr Erwood lost his entire investment of $185,276 due to the dishonesty of those operating the mortgage scheme. He obtained judgment for $212,843.67 against the Law Society but failed against the insurance company. The litigation guardian was appointed to represent Mr Erwood's interests in the previous litigation. The current proceeding is concerned with the circumstances in which the proceeding was compromised at the judicial settlement conference.

The court was required to decide whether Mr Erwood was an incapacitated person who ought to be represented by a litigation guardian, as required by r 4.30 of the High Court Rules. The court also considered whether an amicus curiae should be appointed to assist the court through until the conclusion of the proceedings. The court had to determine if Mr Erwood had exhausted his legal aid entitlement and if there was any issue of public importance that singled this case out for special treatment.

The court found that Mr Erwood may have been an incapacitated person in the past but there was currently no evidence that he remained in that state. The last medical evidence was from 2003, and Mr Erwood had represented himself in proceedings since then without the intervention of a litigation guardian. The court agreed with the remarks of counsel appointed to assist the court and did not consider the possibility of an appointment of a litigation guardian further. The court also found that there was no public interest aspect which would justify the appointment of an amicus in this case. The proper function of an amicus in the circumstances of this case would only be to take a neutral position. If Mr Erwood wished to have legal assistance, he must retain his own counsel or apply for legal aid.

The court concluded that no order appointing counsel ought to be made. The parties were required to file memoranda within 10 working days identifying what steps were required to complete the interlocutory phases of this case and to make it ready for trial. The court made an order discharging counsel appointed to assist the court.

Orders