Joyce v Hooton

[2020] NZHC 1299

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-539

[2020] NZHC 1299

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
Appearances:	Z G Kennedy and H M Jaques for the plaintiff PWG Ahern for the second and third defendants
Judgment:	11 June 2020

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 11 June 2020 at 12.00pm.

Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

Zane Kennedy Barrister, Auckland MinterEllisonRuddWatts, Auckland Morrison Kent, Auckland

JOYCE v HOOTON - Costs [2020] NZHC 1299 [11 June 2020]

[1]                 My 17 December 2019 judgment declared Fourth Estate and Mr Scott separately each are liable to Mr Joyce in defamation. I awarded Mr Joyce solicitor and client costs against separately each Fourth Estate and Mr Scott.1

[2]                 Those were remedies provided in terms of s 24 of the Defamation Act 1992. As such, on the declaration’s “primary vindication”, costs are “a consequential right to indemnity”.2 Notably, although declaratory relief is discretionary,3 the right to indemnity is not.4 The right to indemnity is a factor to be considered in exercise of the declaratory discretion.5 I did not order “otherwise”.6 Factors relevant to awards of indemnity costs under the High Court Rules are immaterial.7

[3]                 Mr Joyce’s solicitor and client costs amount to $268,291.55 (including GST, as Mr Joyce is not GST-registered).8 He supports the quantification with extracts from his solicitors’ time records and copies of invoices, together with evidence of the perceived comparability of his solicitors’ hourly rates with those charged by other large New Zealand law firms. He omits costs incurred on his unsuccessful interlocutory applications for determination of separate questions and strike out, and seeking leave to file a second amended statement of claim.

[4]                 Fourth Estate and Mr Scott (together, for convenience, the “NBR”) contend some of the sought costs are “not properly recoverable” because they relate to aspects of the proceeding for which the NBR should not be held responsible, and are besides “entirely unreasonable for the work involved”.

[5]Under the former category, the NBR resists paying:

1      Joyce v Hooton [2019] NZHC 3356 at [60].

2      Williams v Craig [2018] NZCA 31, [2018] 3 NZLR 1 at [32]. The Supreme Court, in Craig v Williams [2019] NZSC 38; [2019] 1 NZLR 457 overturned the Court of Appeal’s decision, on unrelated grounds.

3      Salmon v McKinnon [2007] NZCA 516 at [47], approved in Smith v Dooley [2013] NZCA 428 at [95].

4      Smith v Dooley, above n 3, at [101]–[102]. But compare Television New Zealand Ltd v Keith [1994] 2 NZLR 84 (CA) at 88: “By proceeding in this way, the plaintiff can now achieve the result which the jury sought to achieve in the present case, but it is achieved without the jury intruding into the area of costs,…