McGuire v Central Standards Committee 3

[2023] NZHC 242

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-382

[2023] NZHC 242

UNDER

the Judicial Review Procedure Act 2016

AND

Part 30 of the High Court Rules

BETWEEN

JEREMY JAMES MCGUIRE

Applicant

AND

CENTRAL STANDARDS COMMITTEE 3

First Respondent

AND

GENERAL STANDARDS COMMITTEE 1

Second Respondent

AND

GENERAL STANDARDS COMMITTEE 3

Third Respondent

Hearing:

7 February 2023

Appearances:

Applicant in person

P N Collins for the 1st, 2nd, 3rd and 5th Respondents Appearances excused for the 4th, 6th and 7th Respondents

Judgment:

20 February 2023

JUDGMENT OF PALMER J

Solicitors/Counsel

P N Collins, Barrister, Auckland Crown Law Office, Wellington

MCGUIRE v CENTRAL STANDARDS COMMITTEE [2023] NZHC 242 [20 February 2023]

AND  LEGAL COMPLAINTS REVIEW OFFICER

Fourth Respondent

AND  WELLINGTON STANDARDS COMMITTEE 1

Fifth Respondent

ANDLAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Sixth Respondent

Summary

[1]                 Mr Jeremy McGuire, a solicitor, applies for judicial review of five disciplinary decisions made against him. I decline the application because:

(a)First, there are charges and complaints that will be heard by the New Zealand Lawyer and Conveyancers Disciplinary Tribunal (the Tribunal) in April 2023. Their merits relate to Mr McGuire’s non- compliance with the previous orders. As long as the previous orders are valid, Mr McGuire cannot relitigate the correctness of those orders in a hearing concerning his non-compliance. The Chair of the Disciplinary Tribunal did not err about that in his minute of 28 June 2022.

(b)Second, Central Standards Committee 3 (Central Committee 3) was not required to give reasons for its decision to refer a matter to the Tribunal in May 2021. It had the power to rescind its decision.

(c)Third, it was reasonable in June 2021 for the General Standards Committee 1 (General Committee 1) to consider Mr McGuire had agreed in August 2019 to refund the difference between his advertised fee and the fee he charged a client. There is insufficient evidence the Council failed to consider relevant considerations. Even if it did, it was entitled to reach the decision it did.

(d)Fourth, General Standards Committee 3 (General Committee 3) did not fail to consider an indemnity in finding Mr McGuire had a professional obligation in 2016 and 2017 not to lodge a caveat in circumstances where he knew, or failed to inquire into whether, there was not a caveatable interest. Any error by the Legal Complaints Review Officer (LCRO) regarding Mr McGuire’s cross-application on penalty did not make a material difference to its decision.

(e)Mr McGuire’s judicial review of a 2009 decision of the Wellington Standards Committee 1 (Wellington Committee 1) was declined in

2014, which was upheld on appeal. Mr McGuire’s unspecified current challenge does not add to that. It is not accurate to say, as he does, that he has no disciplinary history.

What happened?

[2]                 Various committees of the New Zealand Law Society (NZLS) have made disciplinary decisions against Mr McGuire, who says he has faced a decade of torment. He challenges a jurisdictional ruling by the chair of the Tribunal as well as four decisions of standards committees by way of judicial review.

[3]                 The challenge was originally set down for formal proof. On 2 September 2022, Cooke J determined (correctly, in my view) that judicial review proceedings are not suitable for formal proof.1 The Court will always be required to assess whether a ground of review is made out and whether to grant relief. The respondents’ statement of defence was only filed a day late, so the matter was set down for hearing. I treat each challenge in turn.

1  Chair ruling: Tribunal jurisdiction

What happened?

[4]                 Mr McGuire says that the main reason for these proceedings is his challenge to an aspect of the Tribunal’s pending process. In April 2023, he faces a Tribunal hearing or hearings, regarding charges that he did not comply with previous disciplinary sanctions that were imposed on him. Processes leading to the previous sanctions, by General Committee 1 and General Committee 3, are dealt with below. Mr McGuire admits he did not comply with the sanctions. The following occurred in the lead up to one of the pending hearing(s):

(a)On 16 June 2022, Mr Collins, as counsel for one of the committees, submitted in a memorandum to the Tribunal that Mr McGuire has to

1      McGuire v Central Standards Committee 3 [2022] NZHC 2231 at [3].

address the charge which asserts his non-compliance rather than the legitimacy of the original order.2

(b)During a case management teleconference on 28 June 2022, Mr McGuire’s file note suggests that Mr Collins foreshadowed that he would object to questions in cross-examination about anything other than non-compliance.

(c)In a minute of 28 June 2022, the chair of the Tribunal stated:

[7]  Mr McGuire wished for the Minute to record the discussions about jurisdictional matters, so that he and his counsel can be clear. He has already been forwarded Mr Collins’ memorandum, which, in the view of the Chair, correctly highlights the focus of the evidence in this restricted category of misconduct as pleaded.

[8]   While the Tribunal is quasi-inquisitorial in its process, and can broaden the scope of inquiry in appropriate cases, in order to fulfil its (protective) statutory functions, as already indicated to Mr McGuire, it does not hold appellate jurisdiction in respect of Standards Committee decisions. That is the function of the LCRO, or higher courts.

[9]  The Tribunal’s role is to determine charges, and as discussed at the teleconference, the relevant evidence for these particular charges relates to whether orders were made by the standards committee or other body, such as the District Court, and whether these have been complied with.

Submissions

[5] Mr McGuire is concerned that, at the Tribunal hearing, he will not be able to defend himself regarding the merits of the underlying determinations with which he did not comply. He challenges the Chair’s minute on this point as an error of fact, an error of law, a breach of legitimate expectation, and a breach of natural justice. He submits the Tribunal’s function, to “hear and determine any charge against a practitioner” under s 227(b) of the Lawyers and Conveyancers Act 2006 (the Act), should be conducted in a full de novo hearing. He relies on the High Court’s emphasis in McFadden v Nelson District Law Society that the overriding factor is the public

2      Memorandum on behalf of the Standards Committee for Case Management Conference, 16 June 2022, at [2.5].

interest in the proper disposal of the complaint (rather than the charges).3 He points to contextual indications in the Act that Tribunal  proceedings are to be conducted  de novo and submits Tribunal hearings are conducted de novo in practice.4

[6]                 Mr Collins acknowledges that facts relevant to the original orders can be relevant to non-compliance, for example in relation to the compensation orders. He acknowledges that Mr McGuire has the right to apply for judicial review of those underlying findings. But he submits that, when facing charges of non-compliance with Standards Committee orders, Mr McGuire cannot go behind the non-compliance to challenge the merits of the original orders.

Tribunal jurisdiction

[7]                 The upcoming Tribunal hearing concerns Mr McGuire’s non-compliance with previous orders. Therefore, the relevant facts for the upcoming hearing are those relating to his non-compliance. This is what I understand the Tribunal chair to be saying in the minute. The Tribunal decisions to which Mr McGuire refers, in support of his submissions, traverse the merits of the charges before the Tribunal. They do not concern non-compliance with a previous order.

[8]                 If the original orders against Mr McGuire are invalid, having been overturned by the LCRO on appeal or quashed by this Court on judicial review, that would be relevant to non-compliance. Or Mr McGuire may be able to explain his non- compliance in some other way. But Mr McGuire cannot otherwise relitigate the correctness of extant orders in a hearing of subsequent charges. There was no mistake of fact, error of law, breach of legitimate expectation, or breach of natural justice in the Chair’s minute. I decline Mr McGuire’s application for judicial review of that decision.

[9]                 I note, as Mr Collins pointed out, that judicial review proceedings challenging disciplinary charges should not usually be heard and determined before the

3      McFadden v Nelson District Law Society [2003] 3 NZLR 34 (HC).

4      See National Standards Committee No. 1 v Gardner-Hopkins [2021] NZLCDT 21; and Southland Standards Committee v P [2022] NZLCDT 12.

disciplinary process is complete.5 But in relation to the decisions of General Committee 1 and Central Committee 3, Mr McGuire challenges the original decisions of unsatisfactory conduct, not the decision about his refusal to comply which is the subject of the pending hearing. Both Mr Collins and Mr McGuire submit that judicial review of the complaints preceding the hearing of resultant charges is not prevented. I agree it would be helpful to both parties, and to the Tribunal, to know if the challenge is successful before that hearing occurs. As Mr McGuire submits, the hearing of the charges will be radically different if the complaints are set aside. I consider it is in the interests of expeditious justice that the challenge be determined now.

2  Central Committee 3: non-payment of barrister

What happened?

[10]            On 25 March 2019, Mr McGuire was ordered by Central Committee 3 to apologise to, and pay, a barrister whom he had engaged. It was thought at the time that Mr McGuire did not comply. On 3 May 2021, Central Committee 3 referred Mr McGuire to the Tribunal. On 3 June 2021, the decision was rescinded in all respects and no charges were filed.

Submissions

[11]            Mr McGuire challenges the referral decision on the basis the notice of hearing was wrong in fact and Central Committee 3 did not give reasons for its decision, which was an error of law. He submits it is accepted that he had paid the barrister. The Committee was required to give reasons for its decision but did not. Furthermore, having determined to refer the matter to the Tribunal, the Committee did not have the power to rescind that determination; it was required to proceed with the charges. Section 142 of the Act is subject to s 152(4) which, read with s 154(1)(a), provides that once a referral is made, jurisdiction lies with the Tribunal. That is consistent with Orlov v New Zealand Law Society.6 He suggests Central Committee 3’s persistence

5      Orlov v New Zealand Law Society [2013] NZSC 94 at [6]–[7]; and Deliu v New Zealand Law Society [2015] NZCA 12, [2016] NZAR 1062 at [15]–[32].

6      Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562 at [99].

in its referral was “a contumelious abuse of power and process tantamount to a malicious prosecution”.7

[12]            Mr Collins, for Central Committee 3, submits the Court of Appeal’s decision in Orlov is a complete answer to the argument that it is required to give reasons for the decision to refer to Mr McGuire to the Tribunal. The decision was rescinded in any event, which is the responsible approach as a matter of fair process and the interests of justice. Section 142 provides the authority for that. The challenge to the power to rescind was not pleaded.

Reasons and recission

[13]            In Orlov v New Zealand Law Society, the Court of Appeal held that it is clear from s 158 of the Act that a Standards Committee is not required to give reasons for a decision to refer a matter to the Tribunal under s 152(2)(a).8 It said:9

It reflects the underlying policy that complaints are to be dealt with expeditiously and that decisions made under s 152(2)(a), unlike ones made under s 152(2)(b) and (c), are not adjudications on the merits of complaints. They are a step in an ongoing process, the next phase of which involves the framing of an appropriate charge and is governed by s 154.

[14]            The Committee appears to have proceeded on the mistaken basis that Mr McGuire had not paid the barrister. If the charge had been heard, it would no doubt have been dismissed for that reason. But the recission of the referral decision means no relief is available in any event.

[15]            Strictly speaking, I do not have to deal with Mr McGuire’s submission that the Committee does not have power to rescind a decision to refer a matter to the Tribunal because that was not pleaded. In any case, however, I am satisfied that Central Committee 3 was entitled to rescind its decision and was not required to proceed with the charges. A standards committee is empowered by s 142 of the Act to regulate its procedures in such manner as it thinks fit, subject to compliance with the principles of natural justice. That can and should involve rescinding a decision, in the interests of

7 Plaintiff’s submissions, 18 January 2023, at [13].

8      Orlov v New Zealand Law Society, above n 6, at [98]–[100].

9 At [99].

justice, if the original decision was wrong or if, on further reflection, there is insufficient evidence to justify proceeding. The requirements in s 154, which outline what a standards committee must do once it has made a determination, do not affect that. Nor does the final status of a determination under s 152(4), which effectively precludes appeals (but not review by the LCRO or judicial review by this Court).

3  General Committee 1: excessive conveyancing fee

What happened?

[16]            On 15 June 2021, General Committee 1 upheld a complaint by a client that Mr McGuire had charged them a higher fee than his advertised conveyancing fee. General Committee 1 determined Mr McGuire’s conduct was unsatisfactory. It ordered him to reduce his fee to that advertised and pay a refund of $150 to the complainant, which it understood he had agreed to do, in an email. Mr McGuire did not do so. That resulted in a further complaint and a further determination to refer him to the Tribunal, which is to be heard in April 2023. Mr McGuire challenges the first determination, ordering him to pay the refund.

[17]            Mr McGuire objects to production of an affidavit by the NZLS Chief Legal Counsel, Professional Standards, Mr Smith, as contrary to s 50(1) of the Evidence Act 2006. I admit the evidence. That section does not apply because it is not produced to prove a fact in issue in a previous proceeding. It is relevant to General Committee 1’s processes.

Submissions

[18]            Mr McGuire challenges the decision on the grounds of error of fact and (unspecified) error of law. He did not agree to refund the difference between the advertised and charged rates but had said he was willing to refund what was left over in his trust account, which happened to be $150. He says he does not know what exactly was on his website at the time but that the prices on his website are estimates not quotes. The website says he reserves the right to change the figures. And the client agreed to the higher fee indicated in his client engagement letter when she signed it. Mr McGuire acknowledges he does not know whether he made these points to the

Committee but complains that none of them were addressed in the Committee’s determination.

[19]            Mr Collins submits Mr McGuire did not make the points he now makes to the Committee, so they could not take them into account. Neither did he apply to the LCRO to review the Committee’s decision. He points to an email from Mr McGuire to the complainant of 1 August 2019 where he accepts the need for a refund.

Conveyancing fee

[20]            As to the mistake of fact, Mr McGuire’s email of 1 August 2019 responds to the complainant’s request of 28 July 2019 for an explanation as to why he charged

$949 for his services when his website says $799 is the full cost. His email says:

I am back today and will pay the water rates and refund any difference to you when I can. I will need to change my website information as it is outdated and incorrect.

[21]            This response appears to relate directly to the complainant’s inquiry about the difference between the advertised and charged fees. Mr McGuire’s interpretation is consistent with a later response by him to the complainant on 13 October 2021 in relation to the same matter. But, on the basis of the 1 August 2019 email, it was reasonable for the Committee to consider that Mr McGuire had agreed to refund the difference between the advertised and charged fee. I decline the application on the ground of mistake of fact.

[22]            In relation to the error of law, as far as I can tell, Mr McGuire is challenging the Committee’s decision on the ground that it failed to take relevant considerations into account. His affidavit of 11 April 2022 put to the Committee extracts from his website as at 4 June 2022 which stated that he reserves the right to change his fees. His affidavit of 26 April 2022 attached his letter of engagement.

[23]            The Committee states in its decision that it reviewed the material provided by the parties.10 There is no evidence, and Mr McGuire does not say, that he made the

10     Notice of Determination by General Standards Committee 1: Complaint 21098 (15 June 2021) at [7].

points to the Committee that he now says it failed to take into account. In any case, the Committee considered the central issue was whether Mr McGuire had agreed to refund the $150 and, if so, whether his subsequent refusal to do so was a breach of his professional obligations. It concluded that his refusal to pay the refund and failure to respond to the complainant’s subsequent inquiries showed a lack of respect and courtesy, and his failure to recall the commitment and comply with it exhibited a lack of professionalism and a failure to properly administer his practice. If the considerations identified by Mr McGuire had been put to the Committee, it would still have been entitled to reach those conclusions. There is insufficient evidence that the Committee failed to consider relevant considerations and, even if it did, it was entitled to reach the decision it did. I decline the application on the ground of error of law.

4  General Committee 3: unsustainable caveat

What happened?

[24]            In 2016, Mr McGuire applied to register a caveat against a property on behalf of a client, on the client’s instructions. He says he tried to advise the client that a caveat was inappropriate, and had the client sign an indemnity, but the client was adamant. The caveat was eventually registered in 2017, after being rejected twice. His former client complained about the delay and expense and complained about Mr McGuire registering the caveat.

[25]            On 14 May 2018, relying on the Court of Appeal’s judgment in Gordon v Treadwell Stacey Smith, General Committee 3 found that Mr McGuire “had a professional obligation not to lodge the caveat in circumstances where he knew that (or had failed to inquire into whether)” the client had a caveatable interest.11 His standard of advice fell below the standard expected of a reasonably competent lawyer and amounted to unsatisfactory conduct.12 On 28 August 2018, it ordered him to be censured, pay a fine of $5,000 and provide $1,919.50 in compensation to the complainant. On 25 March 2020, the Legal Complaints Review Officer (LCRO) upheld the finding of unsatisfactory conduct.13

11     Notice of Determination by Central Standards Committee 3: Complaint 16807 (14 May 2018) at [13], citing Gordon v Tradewell Stacey Smith [1996] 3 NZLR 281 (CA) at 288.

12 At [22].

13     McGuire v Butler [2020] NZLCRO 43.

[26]            Mr McGuire refused to pay the compensation. The former client collected funds which had been deposited with the District Court in the course of Mr McGuire’s unsuccessful stay application of the recovery proceedings. The former client complained against the refusal to pay. Another standards committee found the refusal to pay was unsatisfactory conduct, ordered Mr McGuire to pay further compensation of $1,500, and referred him to the Tribunal. The Tribunal’s hearing is scheduled for April 2023.

Submissions

[27]            Mr McGuire challenges General Committee 3’s determination that his initial conduct was unsatisfactory and the order that he pay compensation. He challenges the decision on the grounds of error of fact, not taking into account relevant considerations, and unfairness. He submits:

(a)The complainant had a different reason for wanting the caveat than that relied upon by the Committee, as part of his personal strategy to negotiate with his stepmother over a debt. He says he tried to stop the complainant from registering the caveat. He accuses the complainant of lying when he said he would have taken the process no further if Mr McGuire had advised him he did not have a caveatable interest. He cannot be liable due to the complainant’s chicanery. He disputes the amount of compensation.

(b)He disputes the application of the Court of Appeal’s judgment in Gordon v Treadwell Stacey Smith.14 Consistent with that judgment, he obtained an indemnity from the client which General Committee 3 failed to properly consider. He disputes that he registered the caveat because it was registered on his client’s behalf. And the Court of Appeal did not suggest the fault in Gordon was egregious so it does not follow that registration constitutes unsatisfactory conduct here.

14     Gordon, above n 11, at 288.

(c)The LCRO failed to review the second determination because it erroneously stated he had not applied to review it. So, the LCRO’s decision should be set aside as a nullity.

[28]            Mr Collins submits there was no reviewable error in General Committee 3’s determination and order of compensation, which did consider the indemnity. The LCRO stated that it was open to varying the penalty if it had accepted a different view of the facts.

Unsustainable caveat

[29]            The General Committee did not fail to consider the indemnity. It explicitly referred to the indemnity in its decision.15 It considered the indemnity demonstrated Mr McGuire did not consider his client had a caveatable interest in the property. The LCRO also referred to the indemnity.16 Mr McGuire’s arguments against liability were fully before the Committee. I cannot identify any other defect with the Committee’s decision that would sustain a successful judicial review. As the Court of Appeal said in Gordon, and as Mr Collins submits, the appropriate course was for Mr McGuire to put his advice to his client in writing and advise his client to lodge his own caveat, not for Mr McGuire to lodge it himself.17

[30]            On 29 August 2018, the LCRO advised the parties that it had agreed to Mr McGuire’s request that the Committee’s determination on penalty be included in his review. But the LCRO recorded on several occasions in its decision that Mr McGuire had not made a cross-application of the penalty orders against him, noting that Mr McGuire was content to aim at achieving a complete setting aside the determinations such that the consequential orders would fall away.18

15 Notice of Determination by Central Standards Committee 3: Complaint 16807, above n 11, at [4].

16 McGuire v Butler, above n 13, at [78].

17 Gordon, above n 11, at 289. See also McGuire v Butler, above n 13, at [89]–[93]: the LCRO holds that the factual scenario put forward by Blanchard J in Gordon is not the same as the one on these facts, as Mr Butler did not withhold information. The Committee held that even if Mr McGuire did advise against the lodgement the mere fact he lodged it breached his professional obligations. Further, he did not provide any advice in writing explaining the potential s 146 repercussions: Notice of Determination by Central Standards Committee 3: Complaint 16807, above n 11, at [13]-[14] and [21] citing Gordon, above n 11.

18 McGuire v Butler, above n 13, at [1(b)], [55] and [117].

[31]            Even if the LCRO was wrong about Mr McGuire’s cross-application, it stated that, of course, success in relation to the unsatisfactory conduct finding would have caused the penalty and remedy orders to fall away.19 And it stated that if it had concluded that the conduct determination should be supported but in limited terms that called for re-examination of the nature and extent of the penalty and costs orders, it would have revised those orders.20 Furthermore, there is no evidence of Mr McGuire making submissions about penalty that called for consideration other than on that basis. Accordingly, any error by the LCRO regarding the cross-application did not make a material difference to its decision. I decline the application on this ground.

5  Wellington Committee 1: recovering fee from legally aided client

What happened?

[32]            In November 2008, Mr McGuire charged and sought to recover a fee from a legally aided client. The client complained. Then:

(a)In 2009, Wellington Committee 1 referred Mr McGuire to the Tribunal and filed two charges against him for misconduct.

(b)In October 2011, a settlement was reached where one of the charges was withdrawn and Mr McGuire pleaded guilty to a substituted charge of unsatisfactory conduct and agreed to supervision.

(c)In October 2013, the Tribunal censured him for unsatisfactory conduct.

(d)In December 2014, on judicial review, the High Court dismissed Mr McGuire’s challenge on the grounds of delegation, bias, procedural irregularities, and error of law.21 It set aside the censure as being unfair and unreasonable, or a breach of legitimate expectations, given that Mr McGuire had complied with the agreement.22 The High Court did not criticise the referral of the charges to the Tribunal. It noted the guilty

19 At [117].

20 At [121].

21     McGuire v Wellington Standards Committee 1 [2014] NZHC 3042.

22     At [86]–[87].

plea to the amended charge of unsatisfactory conduct was “a sensible response”.23

(e)The Court of Appeal dismissed Mr McGuire’s appeal, finding none of his grounds of appeal had merit, and uplifted his costs by 50 per cent for raising untenable points and serious allegations without evidential foundation.24 The Supreme Court dismissed Mr McGuire’s application for leave to appeal.25

Submissions

[33]            Mr McGuire again challenges the 2009 determination to refer him to the Tribunal and the two misconduct orders. He seeks that the determination be declared invalid and set aside. His grounds for doing so are not made clear either in his pleadings or his submissions. He says his motivation is that, in General Committee 1’s decision in issue 3 above, the Committee referred to his “disciplinary history”. He submits he would not have been fined if he did not have a disciplinary history. He says he does not have a disciplinary history because the charges against him were dropped and there was no censure. Rather, it is the respondent which has breached principles of res judicata by re-opening the wounds of the past.

[34]            Mr Collins submits that Mr McGuire’s allegations of invalidity of the referral determination and two misconduct charges have been conclusively adjudicated in the senior courts already and principles of res judicata apply. Substantively and materially, the same ground of review is raised again, a decade later. The breadth of the analysis by Mallon J, the Court of Appeal and Supreme Court are sufficient to dispose of any concern this Court may have that there was a reviewable error which needs to be corrected. This is an attempt to relitigate the 2009 disciplinary proceedings and should be dismissed. In addition, the 2009 disciplinary proceedings were the subject of a binding and conclusive settlement between Mr McGuire and NZLS which disposes of further litigation about the subject matter of the dispute. That includes this cause of action against Wellington Committee 1.

23 At [76].

24     McGuire v Wellington Standards Committee 1 [2015] NZCA 569 at [48].

25     McGuire v Wellington Standards Committee 1 [2016] NZSC 6.

Does res judicata apply?

[35]            in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, Lord Sumption provided a useful summary of relevant principles of res judicata.26 In essence, it prevents re-litigation of issues the courts have already determined. The grounds for Mr McGuire’s application in respect of Wellington Committee 1’s decision in 2009 are unspecified. But that decision was the subject of careful judicial review by Mallon J in 2014 on the basis of a number of grounds Mr McGuire did specify. One of them succeeded. The others did not. That judgment, and the appeal judgments, resolved those issues. These proceedings suggest no reason to disturb that situation.

[36]            Furthermore, it is not accurate to say that Mr McGuire has no disciplinary history. As the above account demonstrates, his disciplinary history in this regard is convoluted. In relation to these issues, he agreed to admit to unsatisfactory conduct and supervision. The supervision was undertaken for 18 months. His concern is misplaced. I dismiss the application on this ground.

[37]            In addition, the parties agree that the contents of the settlement agreement between them in 2016 is confidential and should be suppressed. Accordingly, I direct that any application to search the Court file will be referred for comment to the parties before it is considered by a Judge.

Result

[38]            I dismiss the application for judicial review. I direct that any application to search the Court file will be referred for comment to the parties before it is considered by a Judge.

[39]            It is not clear to me that costs are sought by the respondents. If they are, and cannot be agreed, I grant leave for the respondents to file and serve submissions of up to 10 pages within 10 working days of this judgment. Mr McGuire would file and serve a memorandum of the same length within 10 working days, and the respondent

26 Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160 at [17]–[26]. This decision was cited by the Court of Appeal in New Zealand in Craig v Stringer [2020] NZCA 260 at [19].

to file and serve a reply memorandum of up to five pages within five working days of that.

Palmer J