Ross v Southern Response Earthquake Services Ltd

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000361

[2021] NZHC 2453

BETWEEN

BRENDAN MILES ROSS and COLLEEN ANNE ROSS

Plaintiffs

AND

SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED

Defendant

Hearing:

13 April 2021

Appearances:

P G Skelton QC, K M Quinn and C B Pearce for Plaintiffs

T C Weston QC, K M Paterson and E D Peers for Defendant S M Grieve and G D R Shand for B & L Vickers and others (Intervening)

Judgment:

20 September 2021

JUDGMENT OF OSBORNE J

(Defendant’s communications application)

This judgment was delivered by me on 20 September 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ROSS v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED [2021] NZHC 2453 [20 September 2021]

TABLE OF CONTENTS

Introduction  [1]

Previous findings in relation to defendant’s communications  [3] The substantive litigation and interlocutory applications and appeals  [8] Directions now sought by Southern Response  [14]

The Rosses’ opposition  [18]

Matters previously determined  [19]

Communications during the opt out period  [22] Content of Southern Response’s communications — the standard to be observed  [25] Content of Southern Response’s communications — discussion  [31] Appendices 1–5  [31]

Appendix 1: Webpage content  [34]

CP1 “Background to the Package”  [36]

CP2  “The Pre-October 2014 Payment Package is based on the Dodds case”  [38] CP3 “The Pre-October 2014 Payment Package is based on the Dodds case”  [39] CP4 “Relationship between pre-October 2014 Payment Package and the

Ross class action”  [44]

CP5 “Your options if you cash-settled with Southern Response prior to

1 October 2014”  [54]

CP6 “Recommendation to seek independent legal advice”  [57]

CP7 “What is the Independent Oversight Committee (IOC)?”  [61] CP8 “EXPLANATIONS ABOUT THE DODDS CASE: Background”  [62] CP9 “EXPLANATION ABOUT THE DODDS CASE: Dodds Court Decision”  [64] CP10 “INDEPENDENT OVERSIGHT COMMITTEE”  [69]

Appendix 2: Registration form  [70]

CP11 First draft email  [71]

CP12 Second draft email  [74]

Appendix 3: Marketing material  [75]

Appendix 4: Direct communication with customers (Phase 2 or where a

customer requests written information)  [76]

CP13 “Relationship between Pre-October 2014 Payment Package and the

Ross Class Action”  [76]

CP13 “Your options if you cash-settled with Southern Response prior to

1 October 2014”  [77]

CP15 “Recommendation to seek independent legal advice”  [78]

Appendix 5: Letterbox drop to Canterbury households (Phase 3 — if required)  [80]

CP16 “Am I eligible for a payment?”  [80]

Content of Southern Response’s communications — approved forms  [82]

Timing of Southern Response’s communications  [84]

Leave reserved  [91]

Orders  [92]

Communications  [92]

Initial Communications  [92]

Further Communications  [92]

Liberty to negotiate and/or settle claims  [92]

Timing  [92]

Leave reserved  [92]

Costs and disbursements  [92]

Introduction

[1]                 In this proceeding Brendan and Colleen Ross1 bring (by leave under r 4.24 High Court Rules 2016) a representative claim against Southern Response Earthquake Services Ltd (Southern Response).2

[2]                 An issue arose as to communications which Southern Response proposed to initiate with individual potential members of the class represented by the Rosses. I heard Southern Response’s…