Joyce v Hooton

[2021] NZHC 2141

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-539

[2021] NZHC 2141

BETWEEN

STEVEN LEONARD JOYCE

Plaintiff

AND

MATTHEW OWEN HOOTON

First defendant (discontinued)

FOURTH ESTATE HOLDINGS (2012) LIMITED

Second defendant

TODD ALLEN SCOTT

Third defendant

Hearing:	On the papers
Counsel:	Z G Kennedy and H M Jaques for the plaintiff PWG Ahern for the second and third defendants
Date of judgment:	17 August 2021

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 17 August 2021 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

Z G Kennedy, Barrister, Auckland MinterEllisonRuddWatts, Auckland Morrison Kent, Auckland

JOYCE v HOOTON – Costs [2021] NZHC 2141 [17 August 2021]

[1]                 My judgment in favour of the plaintiff (“Mr Joyce”) having been set aside,1 its costs award to him falling with it,2 the second (“Fourth Estate” or “NBR”) and third (“Mr Scott”) defendants respectively now seek their costs of $74,307.00 and

$24,405.00, calculated at 2B rates, and $940 and $110 disbursements. I regret the delay in addressing this application, which only  was provided to me on 20 July 2021,       I subsequently being away on circuit.

[2]At issue is if the defendants are entitled to costs referable to:

(a)preparation and attendance times for each by their shared counsel;

(b)preparation time for adjourned May 2019 hearing;

(c)preparation time in relation to briefs of evidence of uncalled witnesses;

(d)actual or scheduled hearing time; and

(e)        band A or no costs on non-party discovery and pre-trial applications—

the plaintiff contending for reduced costs and disbursements — $15,435.00 on steps taken before Mr Scott’s joinder; $4,750.00 for steps exclusively referable to his joinder; and $32,952.50 on steps taken jointly thereafter — totalling $52,957.50, and seeking set-off of $4,206.00.

[3]                 It should be unnecessary to recount the general principles that apply to determination of costs, prime among them being the party who fails with respect to  a proceeding should pay costs to the party who succeeds, costs are payable according to scale applied by reference to “each step reasonably required in relation to the proceeding” and “so far as possible the determination of costs should be predictable and expeditious”.3

Shared counsel

[4]Rule 14.15 of the High Court Rules 2016 provides:

1      Fourth Estate Holdings (2012) Ltd v Joyce [2020] NZCA 479 [CA judgment], setting aside Joyce v Hooton [2019] NZHC 3356 [HC judgment].

2      Joyce v Hooton [2020] NZHC 1299 [First costs judgment].

3      High Court Rules 2016, r 14.2(a), (c) and (g).

14.15   Defendants defending separately

The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a)    several defendants defended a proceeding separately; and

(b)    it appears to the court that all or some of them could have joined in their defence.

Although the rule has more obvious application to defendants’ separate representation, its threshold is if defendants defended separately.

[5]                 Here, as noted in my judgment,4 Mr Joyce amended  his  claim  against Fourth Estate to join Mr Scott to the proceeding, alleging Mr Scott’s tweets meant Mr Hooton’s article was true, retracted by him for reasons other than it was untrue, and responsibly and properly published by Fourth Estate, amounting to republication of the defamation, and claiming relief against Mr Scott under the Act. Those are allegations separate from those against Fourth Estate. They required separate defences.

[6]                 Economy of scope was achieved through the defendants’ retention of the same solicitors and counsel. That has most resonance in steps for preparation for and attendance at conferences and hearing, which may be addressed by an uplift on the one set of costs in those respects. I otherwise allow the defendants their respective costs. I uplift the defendants’ costs of steps for preparation for and attendance at conferences and hearing by 20 per cent.

Adjourned hearing

[7]                 The May 2019 hearing was adjourned on the basis “[c]ounsel agreed repleading was the only acceptable alternative”, the counterfactual being “I held the NBR to its present pleading, Mr Joyce to take the risk I find at trial such meets s 8’s requirements”.5 I expressly reserved costs in connection with the adjourned hearing.6

[8]                 As I said in my earlier costs judgment, “my vacation of the initial trial date explicitly was done to avoid risk to either Mr Joyce or the NBR”. Fourth Estate’s deemed  indemnity  of  Mr  Joyce  aside,  I  saw  “no  foundation  for  the proposition

4      HC judgment, above n 1, at [18].

5      Joyce v Hooton HC Auckland CIV 2018-404-0539, 13 May 2019 (Minute of Jagose J) at [7].

6 At [9].

Mr Joyce [as the successful party] should have to bear associated costs”.7 The same rationale applies now on the reversal of fortunes to give Fourth Estate its costs associated with  preparation  for  the  adjourned  hearing.  However,  for  the  reason I explain in the following paragraph, I apprehend that is only the former step 33, which at scale allowed three days.

Uncalled witnesses

[9]                 That logic does not extend to application of the former step 30, for the defendant’s preparation of briefs for the adjourned trial (or 32, for the defendants’ preparation of list of issues, authorities, and common bundle). As scale costs, they are picked up in the present step 33 for trial.

Actual or scheduled hearing time

[10]            For trial, scale expressly is “calculated by length of hearing”.8 That plainly is the days of the hearing, rather than the days scheduled for it. The time occupied by the hearing was two half-days, as recorded on my judgment’s cover page, rather than the four days scheduled for the hearing. But that was over two hearing days, which is the relevant denominator for preparation.9 Time occupied by the hearing applies to appearance, not preparation, time.10

[11]            If a truncated  hearing  means  a  comparatively  large  amount  of  time  for  a particular step is considered reasonable, band C may apply;11 alternatively — if the time required would substantially exceed the time allocated under band C, or otherwise justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious — increased costs may be available.12 But scale does not now distinguish between bands in preparation for witness hearing. Thus there would need to be a claim for increased costs. It is not sought here. Predictability and expedition are determinative.

7      First costs judgment, above n 2, at [8(a)].

8      High Court Rules, sch 3 (at heading “Preparing for witness hearing”).

9      Schedule 3, steps 33–33B.

10     Schedule 3, step 34.

11     Rule 14.5(2)(c).

12     Rule 14.6(3)(a) and (d).

Band A or no costs on non-party discovery and pre-trial applications

[12]            Costs are awarded globally, to “reflect the complexity and significance of the proceeding”.13 Thus the proceeding is categorised in terms of its overall nature.14 Within that, assessing what may be a reasonable time for a step is prospective, as “the time assessed as likely to be required for the particular step”,15 rather than in hindsight. There is nothing in the nature of the contested interlocutory applications in themselves to diverge from expectations of “a normal amount of time”.16

[13]            Neither should entitlement to final costs be sliced and diced according to perceived intermediate successes or losses in the course of the proceeding. Interlocutory successes ordinarily would be marked by intermediate awards of costs. Here, Mr Joyce’s claim to  indemnity  saw  those  reserved  for  final  assessment.  On Fourth Estate and Mr Scott’s ultimate success, I make no deductions under this head.

Set-off

[14]            For the same reason, although the defendants would allow such, I make no set-off in Mr Joyce’s favour.

Next steps

[15]            I leave it to counsel to quantify costs in accordance with this judgment, for fixing by the Registrar if counsel remain in dispute.

—Jagose J

13     Rule 14.2(b).

14     Rule 14.3.

15     Rule 14.5(1)(c).

16     Rule 14.5(2)(b).