Lincoln v Attorney-General
[2020] NZHC 1810
•24 July 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-76
[2020] NZHC 1810
BETWEEN RICHARD LINCOLN
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
On the papers: Counsel:
Plaintiff in person
K South and C White for Defendant
Judgment:
24 July 2020
JUDGMENT OF CHURCHMAN J (COSTS)
TABLE OF CONTENTS
Introduction [1]
Is Mr Lincoln legally aided? [4]
Costs analysis [12]
Calderbank offer and increased costs [12]
Costs and NZBORA [35]
Financial issues [42]
Result as to costs [46]
Outcome [51]
Ethical issues [52]
LINCOLN v ATTORNEY-GENERAL (COSTS) [2020] NZHC 1810 [24 July 2020]
Introduction
[1] Following a substantive judgment in favour of the defendant (the Attorney- General, representing the Police) in Lincoln v Attorney-General on 8 June 2020,1 the Attorney-General applied by memorandum dated 19 June 2020 for an award of costs. The Attorney-General seeks costs on a 2B basis together with disbursements and a 50 per cent increase to reflect Mr Lincoln’s conduct contributing unnecessarily to the cost of the proceeding.
[2] The plaintiff, Mr Lincoln, responded by memorandum dated 26 June 2020, disputing an award of costs on the basis that he was, and continues to be, the recipient of legal aid under the Legal Services Act 2011 (the Act) and is therefore not liable for costs under s 45 of that Act. Mr Lincoln also rejects the submission of the Attorney- General that there are exceptional circumstances which justify an award of costs despite a grant of legal aid. Further, he submits that an award of costs would be unjust due to his claim concerning breaches of the New Zealand Bill of Rights Act 1990 (NZBORA), and that his lack of funds means he would be unable to pay for any costs imposed.
[3] For the reasons that I will now set out, my conclusion is that while an award of costs is appropriate, a reduced quantum from that claimed by the defendant is warranted on the basis that Mr Lincoln appears to have financial difficulties that would render it impractical to impose the full amount sought by the Attorney-General, as well as the fact that some parts of Mr Lincoln’s claim were settled during the course of the hearing and some adjustment to the costs otherwise payable needs to be made to reflect that.
Is Mr Lincoln legally aided?
[4]Under s 4 of the Act, an “aided person” is defined as the following:
(1)In this Act, unless the context otherwise requires,—
1 Lincoln v Attorney-General [2020] NZHC 1252.
aided person—
(a)means a person who is granted legal aid under this Act or the former Act; and
(b)includes—
(i)a person who is granted legal aid on an interim basis:
(ii)a person whose grant of legal aid has been withdrawn under section 30.
[5] Section 45 of the Act sets out the liability of an aided person for costs in a civil proceeding:
45 Liability of aided person for costs
(1)If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.
(2)No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.
(3)In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:
(a)any conduct that causes the other party to incur unnecessary cost:
(b)any failure to comply with the procedural rules and orders of the court:
(c)any misleading or deceitful conduct:
(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:
(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:
(f)any other conduct that abuses the processes of the court.
(4)Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.
(5)If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would
have been made against that person with respect to the proceedings if this section had not affected that person’s liability.
…
[6] In AA v LA Mander J, referring to Carter v Western Viaduct Marine Ltd, provided guidance on when a person may be considered as an “aided person” for the whole or part of a civil proceeding:2
[13] Although the submissions are not entirely clear, it appears the wife’s contention is that s 45 only applies to costs incurred after the legal aid application was confirmed. She relies on the decision in Carter v Western Viaduct Marine Ltd where the parties had been involved in a number of proceedings over a period of several years. The plaintiffs had been granted legal aid at an early stage, but the grant was limited to a particular stage in the claim and was soon exhausted. The plaintiffs then received a substantial payout from ACC and were no longer eligible for legal aid for the remainder of the proceedings.
[14] Relying on the predecessor to s 45 contained in the Legal Services Act 2000, the plaintiffs argued that once they had been granted legal aid for part of the proceedings they were thereafter immune from any order of costs. Williams J rejected this argument:
[23] … there can be little doubt that when [s 45] speaks of liability for costs orders made ‘with respect to the proceedings’ it must be taken to refer to that part of the proceedings for which the litigant is an ‘aided person’ and not to the whole of the proceedings irrespective of when legal aid is granted. The definition of ‘aided person’ must be read in the same light. Indeed, when the definition of ‘aided person’ refers to a person ‘who is or has been’ granted legal aid, that must refer to the period when legal aid remains extant and not to the period which commences when the proceedings are filed and ends when they are finally concluded.
[24] That is consistent with the terms of the statute, the purpose of which is to enable access to justice by ‘people who have insufficient means to pay for legal services’ (s 3(a)) which suggests that protection from costs orders should be coterminous with an inability to meet legal costs …
[25] It must follow that, even though grants of legal aid are retrospective from the date of the application, there is no basis in statute to take the view that once litigants are granted legal aid they are immune from orders for costs at any stage of the proceeding, either before or after the grant begins or terminates. Put another way, while the statute understandably limits litigants’ liability for costs otherwise payable to them during the period when they have ‘insufficient means to pay for legal services’, there is no reason to conclude that the
2 AA v LA [2017] NZHC 646 (footnotes omitted and emphasis added). See also Carter v Western Viaduct Marine Ltd (2003) 16 PRNZ 1034 (HC).
liability of a litigant for costs does not operate in the normal way when the insufficiency ceases.
[15] Taken out of context, some of these remarks could be taken to mean the material factor is the date on which legal aid is granted, and that a person is only ‘legally aided’ in respect of costs that are incurred after that date. However, taken as a whole and in the context of that case it is clear this was not the Court’s meaning. Rather, the position of the Court was that s 45 immunity can only attach to costs for which the legally aided party is eligible for legal aid. In that case the plaintiffs were not immune for the whole of the costs because they were not eligible for legal aid with respect to the whole of the proceedings.
[7] Mr Lincoln’s status as an “aided person” under the Act was unresolved at the time of the hearing. In his 26 June 2020 memorandum, Mr Lincoln stated that he had received an interim grant of legal aid on 17 October 2019, which was continued on 19 February 2020 and remains current, meaning that he constituted an “aided person” under s 4(1)(b)(i) of the Act from 17 October 2019 onwards.
[8] In a minute dated 7 February 2020 (three days before the start of the substantive hearing) this Court highlighted the lack of clarity as to Mr Lincoln’s legal aid status:
[11] The actual status of Mr Lincoln’s applications for legal aid has been unclear. During the course of the teleconference earlier this week, Mr Tennet confirmed that there had been a limited grant of legal aid of some 10 hours for the purpose of providing an opinion as to the prospect of success of these proceedings. He confirmed that this grant was now exhausted, and he had no grant of legal aid in relation to the forthcoming hearing and accordingly would not be appearing.
[12] During the course of the teleconference at 9 am this morning, Mr Lincoln intimated that there was a further live legal aid application which he was awaiting an outcome in respect of. It was not clear whether this was a freshly lodged application or whether it was some form of appeal or review in relation to an earlier application.
[9] This Court explicitly stated in that minute, and in a minute dated 30 June 2020, that the issue of whether or not Mr Lincoln was in receipt of a grant of legal aid in respect of the substantive proceedings was critical to the application then before the Court in relation to security for costs.
[10] A letter sent to Mr Lincoln from Legal Aid Services on 19 February 2020 stated that he would receive an interim grant of 15 hours of legal aid for the purposes of seeking an adjournment and preparing for and attending a judicial settlement
conference. In giving reasons for the continuance of the interim grant, the letter explicitly stated: “we do so because you [Mr Tennet] suggest this is the best forum in which to try to resolve Mr Lincoln’s claim short of a formal hearing”. However, as noted in this Court’s 30 June 2020 minute:
[8] On the information available to the Court, Mr Tennet would seem to have withdrawn as counsel prior to the letter of 19 February 2020 sent on behalf of the Legal Services Commissioner. No judicial settlement conference ever took place nor was such a conference ever scheduled.
[9] The Court presently has no evidence to support to Mr Lincoln’s claim that he is currently in receipt of a grant of legal aid so as to cause s 45 of the Legal Services Act 2011 to apply.
[11] On the information available to the Court, Mr Lincoln ultimately only received two interim grants of legal aid: the first on 17 October 2019 (for the purpose of providing an opinion as to the prospect of success of the proceedings), and the second on 19 February 2020 (granted for a judicial settlement conference at a time when the Court had never directed such a conference and the hearing had already commenced). Consequently, applying the approach set out in AA v LA, Mr Lincoln was not eligible for legal aid with respect to the whole of the proceedings, but rather had been given two interim grants to assist with specific pre-hearing matters. Because Mr Lincoln was not an aided person in respect of the substantive hearing, for the purposes of s 4(1)(b)(i), the immunity set out under s 45 does not attach to him in respect of the costs incurred by the defendant in relation to the substantive hearing or in respect of costs incurred prior to 17 October 2019.
Costs analysis
Calderbank offer and increased costs
[12] Given that Mr Lincoln failed in all his causes of action in the substantive hearing (and was not legally aided in respect of the hearing itself), the Attorney- General is entitled to an award of costs against Mr Lincoln in respect of the hearing and in respect of work undertaken prior to 17 October 2019, including interlocutory applications.3 The critical issue in these circumstances is whether, as submitted by the
3 Under r 14.2(1)(a) of the High Court Rules 2016, the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.
Attorney-General, these costs should be increased, or whether there are any factors which would in fact support a reduction in what would otherwise be an appropriate costs award.
[13] Counsel for the Attorney-General submitted that costs should be awarded on a 2B basis and put forward a starting point of $50,587 for costs and $896.95 for disbursements. Counsel then submitted that this Court should consider increasing the award of costs due to Mr Lincoln rejecting a Calderbank offer in January 2018,4 where he was offered the sum of $17,500 in full and final settlement of his claim excluding compensation for his firearms and ammunition (which were being negotiated separately).
[14] Mr Lincoln’s rejection of this offer was, according to counsel, an unreasonable act contributing unnecessarily to the cost of the proceeding, which should justify a 50 per cent increase in costs under r 14.6(3)(b)(v) of the High Court Rules 2016. In particular, counsel stressed that the offer came at a very early stage in the proceeding, was “extremely generous” in light of the outcome of the proceeding, and that even if Mr Lincoln had succeeded in his causes of action, it was unlikely that an award would have exceeded the $17,500 offered. Counsel submitted that all these factors indicated that Mr Lincoln’s decision was unreasonable and thus justified a 50 per cent increase.
[15] In his 26 June 2020 memorandum, Mr Lincoln denied that a Calderbank offer had ever been made. While Mr Lincoln appeared to concede that a settlement offer of some $17,000 had been made to him by the Attorney-General, he submitted that:
The defendant made an offer to pay me $17,000 in full and final settlement of all causes of action; leaving me to deal with him out of court over $30,000 worth of property taken from me by his agents…the Calderbank offer was in reality an offer to pay $17,000 in return for the forfeiture of $30,000 +/- of private property. In other words the so called ‘offer’ amounted to me paying the defendant $13,000 +/- on top of the $8,500 loss he incurred on me with his malicious prosecution.
[16] As a result, Mr Lincoln asserted that the offer made by the Attorney-General would “never be accepted”. In his written submissions, Mr Lincoln referred to the
4 Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (CA).
defendant’s Calderbank letter (a copy of which was appended to the defendant’s submissions) in the following terms:
The defendant did not make a Calderbank offer on those terms and is trying, yet again, to deceive the Court. I anticipate that the presiding Judge will again use sophistry decide with the defendant but the issue is raised because it will subsequently be a ground of appeal.
The defendant made an offer to pay me $17,000 in full and final settlement of all causes of action; leaving me to deal with him out of court over $30,000 worth of property taken from me by his agents. The defendant flatly refused to return that property or pay compensation for it (which he is supposed to be doing according to law; regardless of how the property was acquired).
The Calderbank offer was in reality an offer to pay $17,000 in return for the forfeiture of $30,000 +/- of private property. In other words the so-called “offer” amounted to me paying the defendant $13,000 +/- on top of the $8,500 loss he incurred (sic) on me with his malicious prosecution.
[17] This interpretation of the Calderbank offer set out in the defendant’s letter of 8 January 2018 is untenable. The relevant passages in the Calderbank letter said:
… police are making an offer of settlement in the amount of $17,5000 to encompass the entire claim against all defendants including those presently proposed to be joined.
[18] The letter went on specifically to record that the offer did not relate to the question of return or compensation for firearms, magazines and ammunition originally seized as part of the criminal investigation or held as a result of Mr Lincoln surrendering his firearms licence and stated: “This offer is not intended to preclude him from pursing that issue as a separate matter.”
[19] Mr Lincoln’s submissions note that during the course of the substantive hearing the question of compensation for his firearms and ammunition was settled between the parties. He submits:
The defendant is not entitled to now claim costs on causes of action that he agreed were fully and finally settled and therefore discontinued at trial.
[20] On the second day of the trial, the Court was informed by the parties that the issue of compensation was settled. The Court issued a brief oral judgment recording the terms of the settlement. The relevant passage of that judgment says:5
5 Lincoln v Attorney-General [2020] NZHC 134 at [2].
Both counsel have confirmed to me that as a result of a payment of the sum of
$10,795, which is accepted as being the value of the firearms, accessories and ammunition seized, that the plaintiff now abandons causes of action 12 (which relates to a claim of misfeasance in a public office) and cause of action 14 (which relates to trespass and conversion).
[21] On the basis that these two of the 14 causes of action were settled, it is not appropriate for an award of costs to be made in respect of them.
[22] It is clear that the Calderbank offer specifically excluded from its ambit Mr Lincoln’s claim in respect of the firearms, accessories and ammunition and, to that extent, Mr Lincoln’s submissions to the effect that the Calderbank offer was in reality an offer to pay $17,000 in return for the forfeiture of $30,000 is, as discussed above, untenable.
[23] However, as the settlement recorded in the Court’s judgment of 11 February 2020, specifically connected the payment of $10,795 to the abandonment of causes of action 12 and 14, Mr Lincoln’s rejection of the Calderbank offer cannot justify any award of costs in respect of those two causes of action.
[24] The task for the Court is to determine the effect of refusal of the Calderbank offer on causes of action 3, 4, 9, 10 and 13 which were ultimately pursued at the substantive hearing.
[25] Under r 14.10 of the High Court Rules, a party to a proceeding may make a written offer to another party at any time that is expressly stated to be without prejudice except as to costs and relates to an issue in the proceeding. When an offer of this nature is made and rejected, it may be relevant to a Court’s consideration of increased costs under r 14.6(3)(b)(v). That provision dictates that a court may order a party to pay increased costs if the party opposing costs has contributed unnecessarily to the time or expense of the proceeding by failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under r 14.10 or some other offer to settle or dispose of the proceeding.
[26] However, under r 14.11, the effect of an offer made under r 14.10 to the award of costs is ultimately assessed at the discretion of the court. The existence of an offer
of this nature does not automatically justify an uplift,6 and the Court’s discretion must be exercised in a particularised and principled manner.7
[27] In Weaver v HML Nominees Ltd, Katz J helpfully set out a number of factors may impact an assessment of whether an award of costs should be increased following the rejection of a Calderbank offer. These include:8
(a)the size of the offer relative to the actual costs of counsel;
(b)the amount of the claim;
(c)the reasonable expectations of the party that refuses the offer;
(d)the amount of preparation for trial already undertaken;
(e)whether the proceeding concerns an uncertain area of law;
(f)whether the parties were in a position to assess the merits when the offer was received;
(g)the information available to the party who receives the offer and the extent to which they can to assess the offer;
(h)the timing of the offer;
(i)the conduct of the offeror.
[28] When measured against the tests in Weaver v HML Nominees Ltd,9 in terms of the size of the offer relative to the actual costs of counsel and the amount of preparation for trial already undertaken, the offer was made at an early stage at a time when little by way of trial preparation costs had been incurred.
[29] As far as the quantum of the claim is concerned, the damages claimed were extravagant. $55,000 general/aggravated damages were claimed for cause of action 3 (false imprisonment). This can be compared to $5,000 awarded in the case of Attorney-General v Hewitt10 where a full Bench of the High Court confirmed that an award of $5,000 damages for wrongful arrest and false imprisonment of some seven
6 See Oceania Furniture Ltd v Debonaire Products Ltd HC Wellington CIV-2008-485-1701, 16 September 2010 at [41]; and Junior Farms Ltd v Commissioner of Inland Revenue (No 2) (2011) 25 NZTC 20-085 at [17].
7 See Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [22]; and Bluestar Print Group (NZ) Ltd v Mitchell [2010] NZCA 385 at [18].
8 Weaver v HML Nominees Ltd [2016] NZHC 473 at [30] (footnotes omitted).
9 Above n 8.
10 Attorney-General v Hewitt [2000] 2 NZLR 110.
and a half hours duration was “very much in line with the authorities”.11 The District Court in that case had also awarded $5,000 exemplary damages. That award was not challenged on appeal although the full Bench of the High Court said that, had it been, it would not have awarded any exemplary damages.
[30] The District Court Judge had awarded $1,000 general damages for trespass. As the High Court found that there had been no trespass, it did not award any damages. Even allowing an adjustment for inflation, the damages sought by Mr Lincoln in this case were well above the levels likely to have been awarded had Mr Lincoln been successful.
[31] In Attorney-General v Hewitt, just as in the present case, damages were sought both at common law and under the New Zealand Bill of Rights Act (NZBORA). The High Court accepted that the measure of damages at common law is similar to NZBORA damages,12 and also indicated that if common law damages are awarded, they must be deducted from NZBORA damages. The Court specifically referred to the statement of Cooke P in Simpson v Attorney-General (Baigent’s Case),13 where Cooke P had said:14
If damages are awarded on causes of action not based on the Bill of Rights, they must be allowed for in any award of compensation under the Bill of Rights so that there will be no double recovery.
[32] In addition to the $55,000 damages claim for false imprisonment, Mr Lincoln also separately claimed $25,000 in the fourth cause of action (assault and battery,
$5,000 general damages), on the 10th cause of action (trespass) general damages of
$25,000, and compensatory damages of $5,000 on 11th cause of action (trespass) and, in respect of the 13th cause of action (malicious prosecution), special damages of
$8,383 and $180 and general damages of $25,000. These figures were considerably larger than the damages which might have been awarded had Mr Lincoln been successful.
11 At [65].
12 At [73].
13 Simpson v AG [1994] at 3 NZLR 667 at 678.
14 Above n 10 at [69].
[33] The areas of the law involved in this claim could not be described as “uncertain” and Mr Lincoln and his then lawyer would have been in a position to assess the merits of the offer received.
[34] In terms of the causes of action that were not either abandoned or settled, the quantum of the Calderbank offer represents, on the basis of the case law in this area, a realistic estimate of the damages that the plaintiff might have obtained had he been successful. These factors mean that, were it not for the fact that some aspects of the claim were settled and for the other considerations that I am about to address, including Mr Lincoln’s financial circumstances, some increase above scale 2B costs would be justified as a result of Mr Lincoln’s failure to accept a reasonable settlement offer.
Costs and NZBORA
[35] Before the implications of Mr Lincoln’s financial circumstances are traversed, Mr Lincoln’s submissions as to costs awarded in NZBORA proceedings must be considered. In his 26 June 2020 memorandum, Mr Lincoln submitted that because his claim alleged breaches of NZBORA, this Court should be averse to awarding costs, so as to avoid discouraging claimants from taking NZBORA claims in the future for fear of having costs awarded against them.
[36] Rule 14.7(e) dictates that a Court may refuse to make an order for costs or reduce the costs otherwise payable under those rules if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding. Rule 14.7(g) also allows for a reduction in costs if “some other reason” to reduce or refuse costs exists. That would include the fact that a claim is related to NZBORA.
[37] The law in this area was recently summarised by the High Court in Prescott v New Zealand Police15 where Gault J referred, in his costs judgment, to a comment he had made in the substantive proceedings, Prescott v Police where he had said:16
It is unlikely that costs would be awarded against an unsuccessful plaintiff if a NZBORA claim is bona fide and found to have had some merit even though
15 Prescott v New Zealand Police [2020] NZHC 847.
16 Prescott v Police [2019] NZHC 3376 at [113] (footnotes omitted).
unsuccessful, especially if the plaintiff sought no more than a vindication of rights, and the conduct of the case did not warrant an adverse costs order.
[38] The prerequisite for a refusal to award costs on the basis that the case involved a NZBORA claim are therefore:
(a)that the claim was bona fide and found to have some merit;
(b)that the plaintiff sought no more than a vindication of rights; and
(c)the conduct of the case by the plaintiff did not warrant an adverse costs order.
[39] In the present case neither the NZBORA claims (which sought various declarations rather than damages) or the related common law claims had merit. The NZBORA claims were coupled with claims for substantial common law damages arising out of the same factual matrix that was relied on in relation to the NZBORA claims. The first two criteria for refusing an award of costs on the grounds that the case related to a NZBORA claim as set out by Gault J in Prescott v Police, are not met.
[40] The memorandum filed on behalf of the defendant in relation to costs took issue with the plaintiff’s conduct of the proceedings. That is the third of the relevant criteria. The fact that on 4 February 2020, Mr Lincoln advised the defendant he would be abandoning causes of action 1, 2 and 8 without explanation was said to have caused the defendant unnecessary expense. Also referred to was Mr Lincoln’s actions in not filing a new statement of claim as directed to by the Court detailing those causes of action he was abandoning but filing a statement of claim which purported to add new causes of action.
[41] Mr Lincoln’s vacillation as to what claims he was advancing and his late abandonment of some causes of action was unhelpful and I accept that it would have inconvenienced the defendant. It means that he does not meet the test for no costs award being made on the grounds that NZBORA matters were involved. However, as part of the balancing exercise in trying to achieve an outcome which reflects the factors referred to in [34] above, I decline the uplift sought by the defendant.
Financial issues
[42] Mr Lincoln has submitted that there is “zero chance” of payment being made on any costs order, as a result of him being “impecunious and destitute, with no funds or realisable assets left”. He also stated that any costs order would result in his insolvency, making it difficult to pay his costs from a previous proceeding with the New Zealand Law Society, as well as his outstanding student loan.
[43] As with NZBORA claims, financial hardship is a factor that may be considered by the Court when assessing whether costs should be reduced under r 14.7(g). In Foni v Foliaki Muir J, after assessing the current case law, articulated relevant principles to guide the Courts in considering financial hardship as a factor under r 14.7(g):17
(a)Financial hardship is not an answer to a claim for a costs award;
(b)Costs awards must be made at a meaningful level, even against an impecunious party, particularly where the case is found to have lacked merit; and
(c)There is a preference for evidence of limited financial means to be provided in the form of a sworn affidavit (where this is not already established in the substantive proceedings).
[44] In articulating the first principle, Muir J relied on Chesterfields Preschools Ltd v Commissioner of Inland Revenue as authority for the proposition that financial hardship will not immediately negate a claim for a costs award. In that case the Court of Appeal stressed that:18
Hardship is not usually regarded as a ground to resist an award of costs in circumstances where the opposite party has been put to unnecessary expense in responding to an application or appeal.
[45] I take into account the fact that Mr Lincoln has not filed a sworn affidavit to evidence his limited financial means, and the general observation that financial hardship is not immediately an answer to an award of costs. However, some practical consideration must still be given to the fact that Mr Lincoln does not appear to have the financial means to pay the quantum of costs sought by the defendant. Therefore, although the defendant is entitled to an award of costs set at a meaningful level, I
17 Foni v Foliaki [2018] NZHC 3126 at [5] (footnotes omitted).
18 Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7].
consider it appropriate to award costs on a 2B basis rather than on an uplifted basis as sought by the defendant.
Result as to costs
[46] For the reasons discussed above, I fix costs on a 2B basis, but such costs are calculated as from the date of the commencement of the proceedings to 17 October 2019 and then from the date of the commencement of the substantive hearing in February 2020.
[47] The plaintiff has claimed disbursements of $896.95. Under r 14.12 of the High Court Rules, disbursements can include fees of Court for the proceeding, and must be specific and reasonably necessary to the conduct of the proceeding, and reasonable in amount. Given that the disbursements sought in this case all relate to filing fees for different documents required for the Attorney-General’s defence of the case, I consider them to satisfy all the necessary elements under r 14.12 and award them.
[48] There is one further issue of costs that was not addressed by either party in their submissions, and this is the fixing of costs and disbursements against Mr Lincoln by Associate Judge Matthews following an interlocutory application filed by Mr Lincoln and decided on the papers on 5 June 2018.19
[49] Mr Lincoln had initially sought declarations that his firearms licence and its endorsements continued to be in force but then discontinued that application. Associate Judge Matthews acknowledged that costs and disbursements of $2,870.50 sought by the Attorney-General were “entirely reasonable” in the circumstance but indicated that the issue was still moot and would be determined at trial.20 The Associate Judge therefore fixed costs and disbursements for the interlocutory application in the sum of $2,870.50 but reserved the issue whether they were payable to be determined at trial.21
19 Lincoln v Attorney-General – costs judgment of Associate Judge Matthews HC Christchurch CIV-2017-409-0765 June 2018.
20 At [3].
21 At [4].
[50] On the basis of the evidence before me, it seems that Mr Lincoln was not in receipt of legal aid in respect of this interlocutory application and accordingly is liable for costs in respect of it. In the absence of any obvious reason why the costs fixed by Associate Judge Matthews should not be payable, I direct that they are to be paid.
Outcome
[51] The defendant is directed to file a new schedule of costs calculated on the following basis:
(a)the sum of $2,870.50 fixed by Associate Judge Matthews in respect of the costs and disbursements on the interlocutory application is payable;
(b)the sum of $896.95 in respect of disbursements in relation to the first disbursements is payable; and
(c)the defendant is entitled to costs in relation to work undertaken up to 17 October 2019 and work undertaken from the commencement of the substantive hearing on 2B basis.
Ethical issues
[52] In his written submissions in relation to costs, Mr Lincoln made a number of intemperate and offensive comments. If such comments had been made by counsel, they would have been referred to the New Zealand Law Society (NZLS) for a disciplinary investigation.
[53] Mr Lincoln has unsuccessfully applied for admission as a barrister and solicitor. He may repeat that application at some stage in the future. On the basis that the contents of his submissions in respect of costs are potentially relevant to any such future application, I direct that a copy of this judgment and Mr Lincoln’s costs submissions be referred to the NZLS to be held on file by them.
Churchman J
Solicitors:
Raymond Donnelly & Co, Christchurch for Defendant cc: R Lincoln
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