New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd
[2012] NZHC 3560
•19 December 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-005092 [2012] NZHC 3560
UNDER the Judicature Amendment act 1972 and
Part 30 of the High Court Rules
BETWEEN NEW ZEALAND CLIMATE SCIENCE EDUCATION TRUST
Plaintiff
ANDNATIONAL INSTITUTE OF WATER AND ATMOSPHERIC RESEARCH LIMITED
Defendant
Hearing: On the papers
Counsel: BE Brill for Plaintiff
JBM Smith and GM Richards for Defendant
I Gault for Mr Dunleavy
Judgment: 19 December 2012
JUDGMENT OF VENNING J Recusal/costs
This judgment was delivered by me on 19 December 2012 at 4.00 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Atkins Holm Majurey, PO Box 1585, Shortland Street, Auckland 1140
BE Brill, C/- VGA Chartered Accountants Ltd, G12/23 Edwin Street, Mt Eden
AucklandJBM Smith, PO Box 5722, Lambton Quay, Wellington 6145
GM Richards, PO Box 117, Wellington 6140.
Bell Gully, PO Box 4199, Shortland Street, Auckland 1140.
NZ CLIMATE SCIENCE EDUCATION TRUST V NIWA HC AK CIV-2010-404-005092 [19 December 2012]
Introduction
[1] In a judgment issued on 7 September 2012 the Court dismissed the plaintiff’s (the Trust’s) application for judicial review. The Court indicated that costs on a category 2 time band C would seem appropriate but reserved the issue for exchange of memoranda if counsel were unable to agree.
[2] Counsel have been unable to agree and memoranda have been exchanged. The defendant (NIWA) has also indicated that it seeks costs against Mr Brill and Mr Dunleavy personally. In addition, however, the solicitor for the Trust, Mr Brill, raised an issue concerning my interest in a forestry investment. In his memorandum Mr Brill advanced the general proposition that:
A fair minded lay observer could well apprehend that a judge with a material pecuniary interest in the future of any climate change policy might not bring an impartial mind to the resolution of the instant case.
[3] Mr Brill requested information regarding any interest I might have in New Zealand Units (NZU’s) issued under the Emissions Trading Scheme (ETS) to enable the Trust and its advisors to consider the appropriateness of an application that I recuse myself from consideration of the outstanding costs issues.
[4] I addressed the Trust’s request in a minute issued on 20 November 2012. I confirmed that at no time did I consider my interest’s investment in a forest could, in any principled way, lead to a reasonable apprehension of bias but, as the Trust had raised the issue, I set out the details of the forestry investment including that the forest was registered to receive NZU’s under the ETS and the detail as to the units held. I also confirmed that the forest had not as yet sold or traded any NZU’s.
[5] A timetable was fixed for the exchange of further memorandum, in the event the Trust wished to pursue the request that I recuse myself from dealing with the outstanding issue of costs. I confirmed that I would deal with any such application for recusal and/or the costs issue between the Trust and NIWA (if appropriate) on the papers and on the basis of the memoranda exchanged. I also indicated that, even if I considered it appropriate to deal with the costs issue between the parties, if NIWA
wished to pursue its application for costs against Messrs Brill and Dunleavy personally that might require a further hearing.
[6] Since the minute on 20 November 2012 Mr Gault has entered an appearance for Mr Dunleavy. Mr Gault has confirmed that Mr Dunleavy does not pursue any application for recusal. Mr Gault has also confirmed that Mr Dunleavy does not seek to be heard in relation to the costs issue between the Trust and NIWA but would wish to be heard if it became necessary to consider any application for costs against Mr Dunleavy.
[7] The Trust, however, has pursued its application that I recuse myself from dealing with the issue of costs. It has also suggested that it may subsequently see fit to apply for recall of the substantive judgment on the grounds I ought to have recused myself prior to the hearing.
[8] Counsel for NIWA has filed a memorandum opposing the Trust’s application that I recuse myself from dealing with the issue of costs. Mr Smith confirms NIWA’s position is that any connection between any favourable judgment for the Trust (or NIWA for that matter) in the substantive proceedings and the value of NZU’s is and would have been simply too farfetched to amount to a direct pecuniary interest that would support disqualification.
The Trust’s case for recusal
[9] Mr Brill has confirmed in submission that the Trust does not raise any allegation of motivation by actual or conscious bias. The Trust says the issue is “presumptive bias” arising from a direct pecuniary interest and is based on the “possible reaction of a well-informed lay observer”.
[10] The Trust’s case for recusal as outlined in submission is that:
it contends that New Zealand Government policies in relation to climate change are predicated upon NIWA’s projections of future New Zealand
warming which in turn are reliant upon the past warming trends shown in the
7SS. It has always argued that the 7SS has “major public consequences”;
the ETS policy provided for under the Climate Change Response Act 2002 is highly volatile and contentious. It is influenced by a number of factors including the expectation that New Zealand will suffer future warming on a
scale similar to the global average unless global emissions are reduced;
the value of New Zealand carbon credits can “readily be doubled or halved at
the stroke of a Ministerial pen”;
removal of the threat of future catastrophic warming would rightly lead to a
fundamental rethinking of New Zealand climate change policy.
[11] In summary, the issue as posed by the Trust is, “is there a real and not remote possibility that a judicial finding for the Trust could materially increase the downside risks for future carbon farming returns?”
The relevant law – presumptive and apparent bias
[12] There is a difference between presumptive bias, where a decision maker has a direct pecuniary interest in the outcome of the case, and apparent bias, which arises where the decision maker has some personal or professional relationship with a party (their counsel) or witness, or otherwise has a prejudice or predisposition leading to the predetermination of the issue. The Court of Appeal confirmed presumptive and apparent bias were different subjects in Auckland Casino Ltd v Casino Control
Authority.1
[13] The principle underlying disqualification for a direct pecuniary interest was stated in Dimes v Proprietors of Grand Junction Canal.2 The House of Lords
quashed a decision of Lord Cottenham LC in favour of a canal company because the
1 Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 at 149.
2 Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759.
Lord Chancellor held a substantial shareholding in the company. The existence of the interest was sufficient itself. The House of Lords said:
No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred.
[14] In Auckland Casino Ltd v Casino Control Authority the Court of Appeal confirmed the rationale for the rule:3
A firm and realistic rule of pecuniary disqualification is necessary to assist public confidence in the administration of justice ... The existence of an irrebuttable presumption in cases of direct pecuniary interest was assumed in argument. As already mentioned, we think that it may be subject to the de minimis rule. Conceivably there might be other exceptions, but we are not called upon to consider that possibility. ...
[15] The fundamental principle underlying the application of the rule is that it is improper for the decision maker to have a direct pecuniary interest in the outcome of the proceeding so that the decision maker is effectively a judge in his or her own cause. It is a rule, rather than a presumption. I agree with and adopt the following comments of Professor Joseph in Constitutional & Administrative Law in New
Zealand that:4
“Presumptive bias”, while a useful shorthand, is a misnomer. ... A presumption that cannot be rebutted is no presumption but rather a binding rule of application.
[16] As it is a binding rule of application, the pecuniary interest in the outcome of the proceedings must be clear and direct. In Cook v Patterson5 the Court of Appeal confirmed that the pecuniary interest must be direct or reasonably direct. The Court approved the comment of Roper J that it must be not "so remote as to be fanciful".6
[17] An example of cases where the pecuniary interest has been considered to be sufficiently direct are: a judge holding a shareholding in one of the parties (Dimes v
Proprietors of Grand Junction Canal); members of the Authority holding shares in
3 Auckland Casino Ltd v Casino Control Authority at 148.
4 Phillip Joseph Constitutional & Administrative Law in New Zealand (3rd ed, Thomson Reuters, Wellington, 2007) at [24.5.3].
5 Cook v Patterson [1972] NZLR 861.
6 At 865.
the parent company of the successful applicant for a casino licence (Auckland Casino Ltd v Casino Control Authority); and an industrial arbitrator holding shares in a public company of which one of the parties to the arbitration was a wholly owned subsidiary.7 These cases confirm the need for a direct link between the outcome of the case and the pecuniary interest. In each of the cases it was obvious the pecuniary interest of the decision maker would be directly affected by the
outcome.
[18] The pecuniary interest in issue in this case is my interest’s investment in a forest which holds NZU’s issued under the ETS provided for under the Climate Change Act 2002.
[19] To determine whether there can reasonably be said to be a direct link between that pecuniary interest and the outcome of the case I determined, it is helpful to identify both what was not in issue in the judicial review proceedings and what was in issue. For example, the following matters were not in issue or for decision by the Court:
(a) the interpretation or application of the Climate Change Act 2002 (the
Act);
(b) the interpretation or application of the ETS under the Act; (c) Government policy generally in relation to the ETS;
(d) any ministerial decision in relation to ETS.
[20] The Trust’s review proceedings may well have been driven by its members’ belief in relation to climate change but the hearing was not about whether or not there was global warming, nor whether New Zealand itself had experienced climate warming, rather it was whether the methodology and approach by NIWA to its assessment of New Zealand’s temperature records, which disclosed a warming trend,
could be shown to be incorrect.
7 Simmonds v Fortune HC Christchurch M700/79, 5 February 1982 (Hardie-Boys J).
[21] The decisions the Trust challenged in the judicial review proceedings were
NIWA’s decisions:
(a) to publish an adjusted temperature data series, the 7SS, without (the Trust argued) applying recognised scientific opinion (the 1999 decision); and
(b)to publish the 11SS, which the Trust says contained obvious deficiencies in its data (the 2009 decision); and
(c) to publish the review of the 7SS, which the Trust says departed from recognised scientific opinion (the review decision).
[22] The issues in the judicial review proceeding were therefore:
(a) the extent to which the actions of NIWA were amenable to judicial review (decided in the Trust’s favour, i.e. the Court held they were amenable to judicial review);
(b) the standard of review;
(c) if the decisions were reviewable, whether in respect of the 1999 and review decisions NIWA acted in breach of statutory duty and/or failed to consider mandatory relevant considerations;
(d) if the decisions were reviewable whether in respect of all decisions
NIWA acted unreasonably or under a mistake(s) of fact. [23] I determined the last two issues against the Trust.
[24] The primary matter before the Court was the Trust’s challenge to the accuracy of and the appropriateness of the methodology adopted by NIWA in publishing the 7SS, 11SS and in carrying out the review. The Trust’s case for presumptive bias is based on an argument that the outcome of the judicial review could have led to the Government to change or revoke the ETS under the Act. But
that is entirely speculative. There is no sufficiently direct link between the determination of the questions in issue, the ETS scheme and consequentially the value of NZU’s under the ETS created by the Act.
[25] The purpose of the Act which established the ETS is recorded in the Act as:
3 Purpose
(1) The purpose of this Act is to—
(a) enable New Zealand to meet its international obligations under the Convention and the Protocol, including (but not limited to)—
(i) its obligation under Article 3.1 of the Protocol to retire Kyoto units equal to the number of tonnes of carbon dioxide equivalent of human-induced greenhouse gases emitted from the sources listed in Annex A of the Protocol in New Zealand in the first commitment period; and
(ii) its obligation to report to the Conference of the Parties via the Secretariat under Article 7 of the Protocol and Article 12 of the Convention:
(b) provide for the implementation, operation, and administration of a greenhouse gas emissions trading scheme in New Zealand that supports and encourages global efforts to reduce greenhouse gas emissions by assisting New Zealand to meet its international obligations under the Convention and the Protocol, and by reducing New Zealand's net emissions below business-as-usual levels.
[26] The purpose of the Act could not be clearer. It is directed at meeting New Zealand’s international obligations pursuant to the United Nations Framework Convention on Climate Change and the Kyoto Protocol to the United Nations Framework Convention on Climate Change. In order to do so, it provided for the implementation of the ETS.
[27] The purpose of the Act is confirmed by reference to Parliamentary material. I note the general policy statement that accompanied the Climate Change (Emissions Trading and Renewable Preference) Bill 2007 which created the ETS provides:
The Bill’s principal purpose is to amend the Climate Change Response Act
2002 to introduce a greenhouse gas Emissions Trading Scheme in New
Zealand (NZ ETS). The Bill also amends the Electricity Act 1992 to create a preference for renewable electricity generation ...
Emissions trading schemes are increasingly being established in a number of countries and regions around the globe. Over time, the NZ ETS will cover all gases and all sectors, in order to minimise overall costs to the economy and operate with efficiency and equity. The scheme will apply an economy- wide price signal to activities that contribute to climate change.
Climate change is a global problem and New Zealand is reliant on international action to mitigate the risks associated with increased concentrations of greenhouse gases in the atmosphere. The design of the NZ ETS is compatible with the United Nations Framework Convention on Climate Change (the Convention) and the Kyoto Protocol (the Protocol), but is designed to endure under a range of possible future scenarios for international climate change agreements.
[28] The other Parliamentary material referred to in Mr Smith’s submissions are to the same effect.8 There is no suggestion in the Act or any of that material that the Act and the ETS provided for in it was passed or amended because of localised temperature warming in New Zealand as disclosed by the 7SS.
[29] While the Trust maintains its assertion of such a connection there is no evidence to support it. Against that, Dr Wratt’s evidence directly addresses the point. His evidence for the substantive hearing was as follows:
85.Government policymaking in relation to climate change is the result of a variety of factors and processes. Most importantly, this includes key advice from relevant policy advisory Ministries such as the Treasury, Ministry for the Environment, the Ministry of Foreign Affairs and Trade, the Ministry of Agriculture and Forestry, and the Ministry of Economic Development. A range of local and international considerations are also likely to be relevant to the overall policy making process, including international negotiations about climate change policy through bodies such as the United Nations Framework Convention on Climate Change (UNFCC), and key scientific findings from assessments by the Intergovernmental panel on climate change (IPCC). NIWA is a scientific organisation which is a step removed from any direct policy making role. It is a basic misconception of government policy making processes to claim or attribute a direct or significant role for NIWA climate data. It is notable that [the Trust] has not provided any examples in support of its general assertion that the 7SST is the historical base for “most” government policy and judicial decisions relating to climate change in New Zealand.
8 Cabinet Paper “A New Zealand Emissions Trading Scheme: Key Messages and Strategic Issues” (August 2007) at [25]; Cabinet Paper “Emissions Trading Scheme Review 2012 – Proposed Amendments to the Climate Change Response Act 2012” at [17]–[19].
[30] Any case of presumptive bias must rest on the proposition that the outcome of the case could have affected the ETS and thus the value of the NZU’s issued under it. But to suggest that because NIWA may have been held to have applied incorrect methodology in compiling the 7SS might have led the New Zealand Government to ignore other evidence of global warming and to abandon its obligations under the Convention and Protocol to dismantle the ETS under the Act is just not credible.
[31] The short point is that the Act and the ETS provided under it are a response to New Zealand’s international obligations and the international issue of global warming. There is no mention or suggestion that the 7SS was a justification or factor for the ETS in the first place. There can be no realistic suggestion that if the Trust had succeeded that would have led to a change in Government policy to end or cancel the ETS or otherwise to “materially increase the downside risks for future carbon farming returns” as suggested by the Trust.
[32] Further, even if the Court had declared that the 7SS had been unlawfully compiled it would have been open for NIWA to recalculate and republish a further temperature series.
[33] In my judgment there can be no direct link between the outcome of the case between the Trust and NIWA and the continuation of the ETS or even the value of NZU’s. I note that even Mr Brill concedes in his submission for the Trust, that it cannot be said with certainty that a finding for the Trust would inevitably lead to a termination or reduction in the future rewards for carbon farming in New Zealand.
[34] Having reviewed the matter carefully in light of the matters raised by the Trust, I am satisfied there can be no reasonable basis upon which it could be said that I had a direct pecuniary interest in the outcome of the proceedings before the Court. Any connection between my interest in the forest investment including its NZU’s and the effect of the decision on the issues in this case is so remote as to properly be described as fanciful.
[35] In the circumstances it is unnecessary to consider the de minimus exception.
[36] I turn to the issue of apparent bias as that seems to be relied on by the Trust, despite the fact the focus was on my pecuniary interests. The approach to apparent bias was settled in Muir v Commissioner of Inland Revenue.9 The Court must consider whether the established circumstances might lead a fair-minded lay observer reasonably to apprehend that the Judge might not bring an impartial mind to the resolution of the case. The Supreme Court subsequently confirmed in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd10 that with regard to apparent bias, it is necessary to first identify what it is said might lead a judge to decide a case other than on its legal and factual merits and secondly, to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
[37] In the present case the issue of whether a reasonable informed observer would think the impartiality of the Court might be affected must also be answered in the negative. The important point is that the fair-minded observer must be taken to be aware of the circumstances. The circumstances relied on by the Trust in this case is the pecuniary interest. It is that which is said to lead to the risk that the Court might have decided the case other than on its legal merits. But if, as I have held, there is not a sufficiently direct link between these interests and the outcome of the proceedings, there is no basis for any such apprehension. There is no other basis suggested upon which a fair-minded lay observer, could reasonably apprehend that as a Judge I would put aside my judicial oath and decide the application for review other than on its merits.
[38] While I have discussed the issue of bias in relation to the substantive proceedings generally, if anything, the position is a fortiori in relation to the suggestion I should recuse myself from dealing with the issue of costs.
[39] For the above reasons I decline the Trust’s application to recuse myself from dealing further with this case.
9 Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495.
10 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35.
[40] Before leaving this issue, I note that in his submissions Mr Brill renewed his request that I respond to further questions regarding the forestry investment. It is not for parties to proceedings to seek to interrogate the Court. I am aware of the obligations a judge has as to disclosure in terms of Saxmere Company Ltd v Wool Board Disestablishment Company Ltd. The only matters of possible relevance (even taking the definition of relevance from the Trust’s argument) were disclosed in my previous minute.
Costs
[41] I turn to the issue of costs. NIWA seeks costs calculated on a category 2 scale, time band C (where appropriate) and uplifted by 50 per cent to $114,204 plus disbursements or $118,351.90 (inclusive of disbursements).
[42] The Trust submits that, as the proceeding concerned matters of public interest, no order for costs should be made at all but that if any order for costs is made there should not be an uplift. Indeed the Trust submits any costs order should be reduced because of NIWA’s unreasonable conduct of the proceedings.
The public interest issue
[43] Rule 14.7(e) provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable if the proceeding concerns a matter of public interest, and the party opposing costs (in this case the Trust) acted reasonably in the conduct of the proceeding. The Trust relies on the principle as stated in Ratepayers and Residents Action Association Inc v Auckland City Council:11
... compliance with the law by those acting under statutory powers is itself a matter of public interest and the availability of judicial review ... is a statutory recognition of the need to provide adequate procedures for testing the purported exercise of statutory powers. ... the law must somehow find a place for the disinterested citizen ...
[44] The Trust submits that the “watchdog principle” is particularly relevant in cases involving environmental issues such as the present. It emphasises that it sought no pecuniary gain but considered it important, in its words, that NIWA be held accountable to some principle or law in undertaking “opaque” activities which could have major public consequences.
[45] To attract the public interest exception to the normal rule that costs follow the event the case must concern a matter of genuine public interest beyond the interests of the particular unsuccessful litigant, have merit and the litigant concerned must have acted reasonably: Taylor v District Court at North Shore (No 2).12
[46] While the issue of climate change may be seen as an issue of public debate, and on which there may be different views, the case could not and did not address or attempt to resolve that issue. The issue of whether there is global warming and climate change is a scientific issue, not suitable for determination by a Court. Mr Sissons, counsel for the Trust at the hearing, advised the Court in opening that the case was not about climate change as such. The case involved a challenge to NIWA’s methodology and whether NIWA had made mistakes in the adjustments it had made to raw data relating to the temperature records. Ultimately what was in issue in the present case was whether the decisions of NIWA were reviewable, if so, the standard to apply and, in this case, whether NIWA had erred in law or acted unreasonably in compiling the various temperature series. On those last issues the Trust’s challenge was rejected by the Court.
[47] For a number of years the Coalition, which established the Trust, has challenged NIWA’s records in a variety of ways and forums. These review proceedings were just the latest attempt by the Coalition, through the Court and using the vehicle of the Trust, to pursue its challenge to NIWA. I do not accept the submission these were public interest proceedings. They were pursued by the Trust to advance its own interests.
[48] The Trust has made it clear that it does not and will not accept NIWA’s temperature series. The appropriate place for the Trust to challenge NIWA’s science is not the Court. Having chosen to bring the matter to Court for its benefit rather than any wider benefit, the Trust should pay the cost consequences.
The appropriate starting point
[49] I accept the scale costs claimed by NIWA as calculated in the schedule annexed to counsel’s memorandum as the appropriate starting point for costs. Category 2 is appropriate. Counsel has only applied time band 3 where the time spent warranted it. Costs calculated on that basis amount to $80,283.19 (including disbursements).
[50] The Trust submits that the costs award should be reduced to take account of NIWA’s unreasonable conduct of the proceedings, particularly in relation to the pleadings. The Trust argues that the proceedings effectively resulted from NIWA’s unreasonable actions by refusing to accept the challenges to its analysis of the failings of NIWA’s temperature series. That is, with respect, an attempt to re-litigate the substantive decision which determined those issues against the Trust.
[51] The Trust also argues that NIWA itself contributed unnecessarily to the time and expense of the proceeding by altering its position. Mr Brill submits NIWA only admitted for the first time in Dr Wratt’s affidavit that the review decision did not follow the RS93 technique. Further, the Trust criticises NIWA’s application to strike- out the Trust’s claim and says that it is a further ground for reducing the costs that might otherwise be payable to NIWA.
[52] I do not accept those criticisms of NIWA’s actions. NIWA’s pleadings were focused and coherent. To the extent they were detailed that was because NIWA was required to respond to the Trust’s prolix pleadings. Dr Wratt’s affidavit was detailed but it was the substantive response on behalf of NIWA. I do not consider there has been any disentitling conduct on behalf of NIWA that would support any reduction in the costs otherwise claimable by it.
Should the costs payable to NIWA be uplifted?
[53] Mr Smith refers to rr 14.6(3)(b)(ii) and 14.6(3)(d) and submits there should be an uplift in the costs payable to NIWA on the basis of:
the Trust’s abandonment of a significant portion of its claim on the morning
of the trial and the associated wasted costs to NIWA;
NIWA’s actual costs were significantly in excess of scale even with the uplift
sought;
the final statement of claim, being the second amended statement of claim, was quite different; whole and distinct bases for the application for review
were discarded;
some of the allegations discarded had alleged impropriety on behalf of
NIWA;
the Trust was not successful in the slightest;
the Trust acted unreasonably in pursuing the proceedings without obtaining evidence from independent experts to support its case;
the Trust sought to debate science which, it is well recognised, could not be
debated in Court proceedings;
the application to cross-examination was only abandoned after NIWA had
filed a notice of opposition and submissions in advance.
[54] The Trust opposes the application for increased costs. Mr Brill makes the point the Trust succeeded on the legal issue of whether NIWA’s decisions were reviewable. Mr Brill also submits that the fact that the Trust failed on the substantive challenges, does not mean it adopted an unreasonable approach. The
Trust disputes that it was unreasonable to call the evidence of Professor Carter merely because he is a member of the coalition and supports the Trust’s position.
[55] I do not consider the fact NIWA’s actual costs exceed even the uplift sought is a particularly relevant factor. I also accept that the Trust succeeded on the issue of whether NIWA’s decisions were reviewable, although it failed entirely on the merits of the application for review. I do not place very much weight on NIWA’s criticism of the Trust’s reliance on Professor Carter’s evidence in relation to the costs issue. Nor do I place very much weight on the notice for cross-examination issue.
[56] To the extent the Trust’s actions have contributed to the increased costs incurred by NIWA, in my judgment that is primarily in relation to the significant change to its claim reflected in the last minute amendment to its pleadings. The second amended statement of claim, which was a more focused document, was prepared with the assistance of Mr Sissons who presented the case for the Trust. While NIWA has claimed on a time band C basis, I consider it appropriate to provide a further uplift of 50 per cent in relation to NIWA’s preparation of the pre-trial list of issues and preparation for hearing generally because it was required to prepare for a hearing on the basis of the Trust’s existing pleadings, a significant portion of which were abandoned at the last minute. The disruption is confirmed by the fact it was necessary to allow NIWA a day to refocus its submissions at the conclusion of the Trust’s case. The time claimed for preparation of the pre-trial issues, memorandum, authorities and common bundle, and preparation for the hearing currently allowed is nine (9) days. I uplift that by a further 50 per cent and allow an additional four and a half (4½) days.
Order
[57] The end result is that NIWA is to have costs against the Trust in the sum of
$85,091.00 together with disbursements of $4,147.90, in total $89,238.90.
The application for third party costs
[58] As I previously indicated, if NIWA wishes to pursue its application for non- party costs against Mr Dunleavy and Mr Brill personally, that is a quite separate issue. Mr Dunleavy and Mr Brill would be entitled to be heard. If NIWA is to pursue its claim against Messrs Dunleavy and Brill it should do so by way of a formal application. A memorandum is not sufficient. As the basis for NIWA’s application appears to be that the Trust is or will be unable to pay the costs, perhaps that matter should be clarified first. However, those are matters for NIWA and its
advisers to consider further.
Venning J
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