Prescott v District Court at North Shore
[2018] NZHC 485
•21 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-000235
[2018] NZHC 485
BETWEEN PETER RICHARD PRESCOTT
Plaintiff/Applicant
AND
THE DISTRICT COURT AT NORTH SHORE
First Respondent
AND
MALCOLM DENMEAD
Second Respondent
Hearing: On the papers Counsel/
Respresentation:
Applicant in person
A F Todd for First Respondent
N A Speir for Second RespondentJudgment:
21 March 2018
JUDGMENT OF PAUL DAVISON J
[Re: Costs]
This judgment was delivered by me on 21 March 2018 at 11am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Rice & Co., Auckland
PRESCOTT v THE DISTRICT COURT AT NORTH SHORE [2018] NZHC 485 [21 March 2018]
Background
[1] On 19 December 2016, Mr Prescott filed documents in the North Shore District Court intending to commence a private prosecution against Mr Denmead, an officer of the Auckland Council. On 27 January 2017, Judge Down directed that these documents were not to be accepted for filing.1 Mr Prescott, who is self-represented, sought judicial review of Judge Down’s decision.
[2] I heard Mr Prescott’s application for judicial review, and issued a judgment on 17 November 2017 in which I found that Judge Down had erred in refusing to accept the charging documents for filing.2 In particular, the Judge had failed to follow the procedure in s 26 of the Criminal Procedure Act and had relied on irrelevant and extraneous material. I granted relief to Mr Prescott by way of orders setting aside the decision of Judge Down and remitting the private prosecution documentation to a District Court Judge, to be considered in accordance with s 26 of the Criminal Procedure Act.
[3] At the conclusion of my judgment I reserved the question of costs and invited the parties to file memoranda. Mr Prescott now seeks costs of $6,068 (calculated on a 1B basis) and disbursements of $63. The first and second respondents oppose any award of costs and disbursements on the grounds that lay litigants are not entitled to costs and that costs are only awarded against judicial officers in exceptional cases.
Mr Prescott’s submissions
[4] Mr Prescott contends that lay litigants should be entitled to costs in New Zealand. He makes a number of arguments. First, he submits that an award of costs to the successful party indemnifies that party for the lost time and expenses inevitably caused by court proceedings, and encourages efficient litigation. He contends that time is a “precious commodity” and as a matter of principle lay litigants should be reimbursed for their time spent preparing for the hearing and attending court. Secondly, he says that a refusal to award a self-represented litigant costs is
1 Prescott v Denmead DC North Shore, 27 January 2017 (Directions of Judge J C Down in a proposed private prosecution).
2 Prescott v District Court at North Shore [2017] NZHC 2828.
discriminatory, and therefore in breach of s 19 of the New Zealand Bill of Rights Act 1990 (NZBORA). Lay litigants, he says, are made to suffer more than litigants who are represented by counsel: they are liable to pay costs to the other side if unsuccessful, but cannot be awarded costs in respect of their own time if successful.
[5] Next Mr Prescott relies on a number of overseas authorities in which lay litigants have been awarded costs. He refers to the Litigants in Person (Costs and Expenses) Act 1975 (UK) and the Civil Procedure Rules (UK), both of which refer to and explicitly contemplate the court awarding a litigant in person costs.3 He cites the United Kingdom parliamentary debates on the introduction of the Litigants in Person (Costs and Expenses) Bill in 1975, in which Mr Davidson said:4
It is to be hoped—and this advice is always given—that no one embarks lightly upon litigation and that no one undertakes litigation except as a last resort. If, however, a person is forced into it and chooses to represent himself he should not be out of pocket if he is successful.
[6] Mr Prescott also cites the Australian case of Cachia v Hanes,5 in which Kirby P (dissenting) was in favour of lay litigants being awarded costs. His Honour suggested that refusing to award costs to a lay litigant breached the right to equality before the courts contained in the International Covenant on Civil and Political Rights.6
[7] Next Mr Prescott cites Skidmore v Blackmore,7 a Canadian decision in which the British Columbia Court of Appeal held that successful self-represented litigants were entitled to costs as this was consonant with the principles of the Canadian Charter of Rights and Freedoms.8 Mr Prescott submits that other Canadian courts have more recently followed this reasoning.9
3 See Litigants in Person (Costs and Expenses) Act 1975 (UK), s 1; Civil Procedure Rules (UK), r 46.5.
4 (25 April 1975) 890 HC Deb 1925.
5 Cachia v Hanes (1991) 23 NSWLR 304 (NSWCA).
6 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), art 14(1).
7 Skidmore v Blackmore (1995) 122 DLR (4th) 330 (BCCA).
8 Canada Act 1982 (UK), sch B (Constitution Act 1982), Part I (Canadian Charter of Rights and Freedoms).
9 For example Fong v Chan [1999] 181 DLR (4th) 614 (ONCA); British Columbia (Minister of Forests) v Okanagan Indian Band [2003] 3 SCR 371; 1465778 Ontario Inc v 1122077 Ontario Ltd (2006) 275 DLR (4th) 321 (ONCA).
[8] In light of these authorities and arguments of principle, Mr Prescott says that the current position excluding self-represented litigants from recovering costs “is no longer tenable”. In his submission, the New Zealand position – which he says relies on nineteenth century British authority10 – is outdated.
[9] As for the argument that it is too difficult to quantify costs for self-represented litigants, Mr Prescott responds by saying that the United Kingdom and Canadian courts have developed workable calculations.
[10] Mr Prescott submits that costs are within the discretion of the court, and it is therefore possible to award him costs. He seeks 1B costs, acknowledging that it is appropriate to scale down from Category 2B (which he says would otherwise be appropriate for these proceedings).
[11] In the alternative, Mr Prescott seeks an award of “expert’s expenses”, relying on the decision in Lincoln v Police.11
Respondents’ submissions
[12] Ms Todd for the first respondent, the North Shore District Court, submits that Mr Prescott is not entitled to costs as a lay litigant. She says that this is not a rare and exceptional case where the Court should depart from that well-established principle.
[13] Ms Todd further submits that Mr Prescott is not entitled to costs as an expert, as this case can be distinguished from Lincoln v Police. Mr Prescott did not, she says, provide significant assistance to the Court.
[14] Finally, Ms Todd also says that even if Mr Prescott was entitled to costs, costs are only awarded against judicial officers in the “rarest of circumstances”. She says that this would not be appropriate here. On this basis she also says the first respondent should not be required to pay disbursements.
10 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 (CA).
11 Lincoln v Police (2010) 20 PRNZ 19 (HC).
[15] Mr Speir for the second respondent, Mr Denmead, supports the submissions made by the first respondent. He also adds that because Mr Prescott is self-represented and the first respondent took no part in the proceedings, it fell on the second respondent to outline the legal issues and to identify the leading decisions for the Court. He submits that this is a further reason against awarding costs to Mr Prescott.
[16] Mr Speir also says that the disbursements listed by Mr Prescott do not fall within the scope of “reasonable disbursements”, which ordinarily encompass court filing fees, service expenses and other such matters.
Mr Prescott’s submissions in reply
[17] Shortly after the first respondent filed its memorandum regarding costs, Mr Prescott filed a strongly worded memorandum in reply. He asserted that the first respondent’s memorandum “perpetuated discrimination” and breached the NZBORA. He describes the memorandum as “legally and constitutionally unlawful” and requests that the Court decline to consider it.
[18] The allegations in Mr Prescott’s memorandum in reply are without foundation. The first respondent is entitled to be heard on the question of costs and I decline Mr Prescott’s request to exclude the first respondent’s memorandum from consideration.
Discussion
Costs awards to self-represented litigants
[19] Mr Prescott has correctly calculated costs on a 1B basis in accordance with Schedules 2 and 3 of the High Court Rules 2016. He also correctly notes that broadly speaking, costs are at the discretion of the Court.12 However, the High Court’s discretion in that regard is constrained by several Court of Appeal decisions affirming an “established rule of practice” that self-represented litigants are not entitled to
12 High Court Rules 2016, r 14.1.
recover costs, other than in exceptional cases.13 The Court of Appeal re-affirmed this principle as recently as 2017, in Joint Action Funding Ltd v Eichelbaum.14
[20] The Court of Appeal in Re Collier (A Bankrupt) gave examples of what might amount to an “exceptional case” where a litigant in person could be awarded costs:15
… it could happen that a litigant might involve himself in an action without hope of any personal gain or advantage, but purely out of the concern for the welfare of the general public. Such cases have occurred in the past, as in Simpson v Attorney-General … in which the plaintiff challenged the validity of the general election of 1946 because of certain irregularities in the formalities that preceded it. Another case was Fitzgerald v Muldoon … in which the plaintiff successfully challenged the validity of a policy announced by the then Prime Minister concerning superannuation scheme payments laid down by statute without first convening Parliament to pass enabling legislation.
[21] Mr Prescott does not argue that these proceedings amount to an exceptional case conducted without hope of any personal gain, and I do not consider that they could be described in that way.
[22] The High Court has carved out a further exception to the general rule by holding that a lay litigant can recover fees he or she pays by way of professional assistance, as a disbursement.16 For example, if a lay litigant pays for legal advice but conducts the actual litigation him or herself, the lay litigant may be entitled to recover the fees paid. That is not the case here. Mr Prescott claims costs for his own time and expense, not fees paid for any professional assistance.
[23] A further exception exists (and is raised by Mr Prescott) when the lay litigant gives significant expert assistance to the Court. This exception was recognised in Lincoln v Police. In that case Mr Lincoln, who was not a lawyer, represented himself in a judicial review proceeding challenging a revised interpretation of the meaning of “military pattern free-standing pistol grip”, as used in the Arms Act 1983, which the police were intending to apply. He was successful, and sought costs for the 104 hours
13 Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 439–440; Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24-500 at [162].
14 Joint Action Funding Ltd v Eichelbaum [2017] NZCA 249, (2017) 23 PRNZ 551 at [2].
15 Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 441.
16 See Re Working Capital Solutions Holdings Ltd, ex parte Pezaro [2014] NZHC 2480; Harrison v Keogh [2015] NZHC 3320; and Sandilands v New Zealand Law Society [2017] NZHC 2640.
he calculated he spent researching, collating, gathering evidence from various sources and generally attending to the substantive proceeding. Mallon J acknowledged the useful assistance he provided to the Court, noting that he demonstrated considerable knowledge about firearms. She further observed that expenses paid to experts can be recovered as a disbursement, and awarded Mr Lincoln costs to reflect his expert assistance.
[24] The Lincoln v Police exception for expert assistance appears to be infrequently applied. Recently, in Broadbent v Chief Executive of the Ministry of Social Development, Katz J held that Mr Broadbent did not fit within this exception:17
His knowledge of accounting concepts was presumably very helpful to him when preparing his case. However, his assistance to the court was not akin to that of an expert. I see no reason to draw an exception in this case for Mr Broadbent's knowledge of law in this area.
[25] Although he raises this exception, Mr Prescott does not identify how he gave assistance akin to that of an expert. I do not consider that he gave assistance comparable to that of Mr Lincoln in Lincoln v Police, such as to justify an award of costs.
[26] In the present case I see no reason to depart from the established rule of practice that self-represented litigants are not entitled to recover costs. Mr Prescott has highlighted that New Zealand’s position on this issue is inconsistent with a number of overseas jurisdictions. An academic commentator in New Zealand has called for “a thorough consideration of the fundamental principles underlying the rule”.18 However, it is not appropriate for the High Court to undertake a detailed reconsideration of that nature, given the Court of Appeal statements on this point.
Costs awards against a judicial officer or the Court
[27] Even if Mr Prescott were represented, he would have faced an added difficulty in obtaining costs in the present case. That is because costs will not be awarded against
17 Broadbent v Chief Executive of the Ministry of Social Development [2017] NZHC 2123 at [10].
18 Andrew Beck “Who gets costs? The plight of the unrepresented” [2017] NZLJ 281 at 284.
a judicial officer, or the court of which that judicial officer is part,19 for a mere error of law.20 To obtain costs against a judicial officer or court, it is necessary to show that a judicial officer has acted perversely, oppressively or in bad faith.21 The District Court in the present case correctly abided the decision of this Court, taking no active part in the proceedings. Making an order for costs in these circumstances is “an expression of disapproval of the conduct of the judicial officer in character”,22 and is only appropriate in the “rarest of circumstances”.23
[28] An expression of disapproval of this nature would not have been warranted in the present case: Judge Down made an error of law, but certainly did not act perversely, oppressively or in bad faith.
Disbursements
[29] The Court of Appeal authorities affirm that although self-represented litigants are generally not awarded costs, the courts have a discretion to award reasonable disbursements.24 Mr Prescott claims disbursements of $63.00, itemised as follows:
Description Amount Internet research data costs $10.00 Phone costs $5.00 Office costs $10.00 Paper and printing $3.00 Vehicle costs to city to file documents and to attend hearing $15.00 Sky City Court related parking $20.00 Total $63.00
[30] Both respondents are opposed to Mr Prescott recovering disbursements. I accept the first respondent’s argument that, just as there is no basis for an award of
19 See Siemer v District Court at North Shore [2013] NZHC 120, [2013] NZAR 168 at [12]–[15], where Lang J declined to draw any distinction between cases in which the named defendant is a judicial officer, and those in which the defendant is a judicial institution (such as a court).
20 Coroner’s Court v Newton [2006] NZAR 312 (CA) at [46].
21 Wang v District Court [2015] NZHC 1611, [2015] NZAR 1678 at [11], citing Coroner’s Court v Newton [2006] NZAR 312 (CA).
22 Wang v District Court [2015] NZHC 1611, [2015] NZAR 1678 at [18], citing Coroner’s Court v Newton [2006] NZAR 312 (CA) at [46].
23 Wang v District Court [2015] NZHC 1611, [2015] NZAR 1678 at [11], citing Coroner’s Court v Newton [2006] NZAR 312 (CA) at [44].
24 See Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 440.
costs against the Court in this case, there is also no basis for an order that the first respondent pay disbursements. If they are to be recoverable, disbursements would therefore be payable by the second respondent only.
[31] The second respondent submits that the disbursements claimed by Mr Prescott are not within the ordinary scope of disbursements.
[32]Rule 14.12(1) of the High Court Rules defines a disbursement as follows:
disbursement, in relation to a proceeding,—
(a)means an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs; and
(b)includes—
(i)fees of court for the proceeding:
(ii)expenses of serving documents for the purposes of the proceeding:
(iii)expenses of photocopying documents required by these rules or by a direction of the court:
(iv)expenses of conducting a conference by telephone or video link; but
(c)does not include counsel’s fee.
[33] Rule 14.12(2) adds:
A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is –
(a)of a class that is either—
(i)approved by the court for the purposes of the proceeding; or
(ii)specified in paragraph (b) of subclause (1); and
(b)specific to the conduct of the proceeding; and
(c)reasonably necessary for the conduct of the proceeding; and
(d)reasonable in amount.
[34] I consider that Mr Prescott is entitled to recover phone costs, internet research costs, office costs, and the costs of paper and printing (totalling $28.00). However,
vehicle and parking costs do not meet the requirements in r 14.12. While modest in amount, they could not be described as specific to the conduct of the proceeding.
Result
[35]I decline Mr Prescott’s application for costs. Costs are to lie where they fall.
[36] However, the second respondent is ordered to pay to Mr Prescott disbursements of $28.00.
Paul Davison J
6
9
1