Lincoln v Attorney-General - [2020] NZHC 1810

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…

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.

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Details

Case: [2020] NZHC 1810
Decision Date: 24 July 2020

CaseChat Overview and Summary

Lincoln v Attorney-General is a case concerning an award of costs to the Attorney-General following a substantive judgment in favour of the defendant in a proceeding brought by Mr Richard Lincoln. Mr Lincoln had brought claims against the Attorney-General for various breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) and common law claims, all of which were dismissed. The Attorney-General applied for an award of 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. Mr Lincoln opposed the application 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. He also rejected the submission of the Attorney-General that there were exceptional circumstances which justified an award of costs despite a grant of legal aid. Further, he submitted 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 meant he would be unable to pay for any costs imposed. Churchman J held that while an award of costs was appropriate, a reduced quantum from that claimed by the defendant was warranted on the basis that Mr Lincoln appeared to have financial difficulties that would render it impractical to impose the full amount sought by the Attorney-General. The Court concluded that an award of costs on a 2B basis, together with disbursements, was appropriate.

Orders