Taylor v Attorney-General
[2023] NZHC 2718
•28 September 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-802
[2023] NZHC 2718
BETWEEN ARTHUR WILLIAM TAYLOR
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Counsel: Plaintiff self-represented
S M Kinsler and D M A Wiseman for Defendant
Judgment:
28 September 2023
JUDGMENT (No 4) OF ISAC J
[Costs]
Introduction
[1] In this proceeding Mr Arthur Taylor brought wide ranging claims against the Department of Corrections in relation to his treatment as an inmate between June 2011 and March 2018. The claims were almost all advanced as breaches of the New Zealand Bill of Rights Act 1990, and included allegations of inadequate standards of detention, failures to provide appropriate opportunities for rehabilitation, and an occasion where he was said to have been assaulted by prison staff and transferred to another prison unlawfully. Mr Taylor sought a host of declarations and public law damages totalling
$1.45 million.
[2] My substantive judgment of 30 November 2022 addressed Mr Taylor’s claims in six chapters, following the way in which the parties had approached the case at
TAYLOR v ATTORNEY-GENERAL [2023] NZHC 2718 [28 September 2023]
trial.1 Overall, Mr Taylor succeeded wholly or in part on some of his claims but failed entirely in respect of others.
[3] The Attorney-General now seeks costs against Mr Taylor. It is submitted that Mr Taylor enjoyed very limited success in the context of his claim. Ultimately, it is said, the judgment represented a substantially worse outcome for Mr Taylor compared to a Calderbank offer made to him by the defendant in a letter of 18 February 2022. Despite the offer, Mr Taylor elected to persevere with his claims in a lengthy contested civil trial, resulting in significant unnecessary costs to the defendant. The Attorney- General submits that on a realistic appraisal it was the substantially successful party, and seeks costs totalling $204,178.16. That figure represents scale costs on a 2B basis, with uplifts in relation to certain steps:2
(a)$12,625.42, representing 2B costs for Chapters One, Two, Four and Six up until 18 February 2022 when the Calderbank offer was made;
(b)$76,699.38, representing 2B costs with a 50 per cent uplift for Chapters One, Two, Four and Six for the period after the Calderbank offer; and
(c)$114,853.36, representing 2B costs with a 50 percent uplift across the duration of the litigation for Chapter Five.3
[4]The Crown also seeks to recover disbursements of $54,078.85.
[5] Mr Taylor opposes the costs application, saying that the sums sought are excessive, unjustified, and designed to have a chilling effect on prospective plaintiffs. He says that any costs award should reflect both the considerable public interest in the proceeding, and the various issues that he was successful on. Mr Taylor denies acting
1 Taylor v Attorney-General (No 3) [2022] NZHC 3170 (re-issued on 5 December 2022).
2 No claim is made for costs in respect of Chapter Three, in which Mr Taylor successfully challenged the ban of the Truth newspaper in Auckland prison in 2011 as an unjustified limit on his right to freedom of expression.
3 The Court found Mr Taylor lied about being unconscious during his transfer between Auckland and Waikeria prisons in December 2017. While the Crown considers Mr Taylor’s conduct in relation to this chapter would ordinarily justify an award of indemnity costs, it seeks scale costs with a 50 per cent uplift to reflect Mr Taylor’s status as a self-represented litigant who enjoyed a degree of success.
unreasonably and submits that ventilation of his claims in court was necessary to vindicate fundamental human rights (particularly given Corrections’ history of repeated failures to heed guidance by courts and human rights bodies) and given the Attorney-General’s refusal to settle the claims on reasonable terms. Mr Taylor also notes that he was granted legal aid in 2013 to bring this proceeding but that, primarily due to the failure of his assigned counsel to act on his instructions, he was ultimately forced to prosecute the case himself.4 He submits that had the case continued on legal aid, he would have faced no costs liability.5 Finally, Mr Taylor relies on a memorandum provided by Ms Hazel Heal, who assisted him in the trial.6
Request to appoint counsel assisting
[6] A preliminary issue is a request by Mr Taylor in his costs memorandum dated 4 July 2023 that an amicus curiae be appointed to assist the Court on the issue of costs. He says this is necessary because he suffers trauma arising from his incarceration and that engaging with the facts of the case exacerbates his difficulties.
[7] The relevant principles are traversed in Erwood v Holmes.7 The power to appoint counsel assisting lies in the Court’s inherent jurisdiction and is “entirely in the Court’s discretion”.8 Ordinarily, the power will be exercised where there is a risk that an important and difficult point of law will require a determination without having been the focus of argument.9 Courts should take care not to encourage the role of counsel assisting to become a parallel de facto legal aid system.10
[8] While I am sympathetic to the difficulties that Mr Taylor faces, he was able to conduct a six-week trial on the issues he struggles with and has provided no evidence
4 Mr Taylor cites a decision of a Legal Complaints Review Officer which appears to support his claim. The decision indicates that a lawyer was censured and fined for unsatisfactory conduct for failing to take effective steps toward prosecuting the claim.
5 Section 45(2) of the Legal Services Act 2011 provides that no order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.
6 Ms Heal made observations about the disadvantages Mr Taylor faced as a self-represented litigant.
7 Erwood v Holmes [2017] NZHC 1278, [2017] NZAR 971 at [31]–[38].
8 At [34], [35] and [37].
9 At [35], citing Levy v Victoria [1997] HCA 31, (1997) 189 CLR 579 at 604 where Brennan CJ said, “The footing on which an amicus curiae is heard is that the person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.”
10 At [36].
that he is suffering from a disability as a result. Moreover, I am not satisfied that there are relevant matters on which a counsel assisting would be able to assist the Court. Ultimately, I have been able to reach a conclusion based on the helpful submissions Mr Taylor has already filed.
Overview of the substantive decision
[9] It is unnecessary to set out the findings in the substantive judgment in detail. The following is a summary.
[10] Broadly, Mr Taylor enjoyed success in relation to the claims he advanced in relation to three of his six claims (which I referred to as “chapters” in the substantive judgment):
(a)In chapter one, Mr Taylor claimed that his standards of detention while on directed segregation at Auckland Prison in 2011 and 2012 were inconsistent with his right to be treated with humanity and with respect for the inherent dignity of the person under s 23(5) of the Bill of Rights. I held that during that time Corrections’ failure to provide Mr Taylor with his minimum entitlement to daily exercise, and accommodating him in a cell with an operating and monitored CCTV camera whilst in the High Care Unit, breached his right under s 23(5). I made a declaration to that effect and awarded Mr Taylor $6,000 in damages. I dismissed the remainder of the claims under that chapter.
(b)In chapter three, I made a declaration that the decision in 2011 to prohibit the Truth newspaper in the East Division of Auckland Prison was an unjustified limit on Mr Taylor’s right to freedom of expression under s 14 of the Bill of Rights Act. I did not consider any further remedy was necessary to provide effective redress.
(c)In chapter six, I held that subjecting Mr Taylor to nine strip searches while in Corrections’ custody between January and March 2018 amounted to a breach of ss 21 and 23(5) of the Bill of Rights Act, and awarded Mr Taylor $12,000 in public law damages. I also found that
while Corrections’ use of mechanical restraints on Mr Taylor during a prison transfer in March 2018 was unreasonable, it did not amount to a breach of s 23(5). It is relevant, for the purposes of the defendant’s costs argument, that Corrections accepted at the outset of the proceedings that the strip searches and use of mechanical restraints were unlawful, and that the strip searches were unreasonable in breach of s 21 of the Bill of Rights Act.
[11]Mr Taylor was entirely unsuccessful in chapters two, four and five:
(a)In chapter two, I dismissed Mr Taylor’s claim that Corrections’ response to three fires in D Block of Auckland Prison in 2011 and 2012 amounted to a breach of a tortious duty to protect Mr Taylor from the fires as well as a breach of s 23(5) of the Bill of Rights Act.
(b)In chapter four, I held that Corrections did not breach its obligation under s 52 of the Corrections Act 2004 to provide Mr Taylor with rehabilitation opportunities whilst he was held in D Block, and that Corrections’ efforts were consistent with his rights under ss 22 and 23(5) of the Bill of Rights Act. I also held that significant portions of Mr Taylor’s claim under this chapter were res judicata.
(c)In chapter five, I dismissed Mr Taylor’s claim that Corrections’ decision to transfer Mr Taylor to Waikeria Prison in December 2017 was made for an improper purpose, was otherwise unlawful, or amounted to a breach of s 23(5) of the Bill of Rights Act. I also held that the manner in which Mr Taylor was transferred was carried out in a lawful and humane manner. I also concluded that Mr Taylor was not rendered unconscious as a result of Corrections officers’ efforts to move him to Waikeria Prison.
Relevant principles
[12] All matters relating to costs are discretionary,11 although that discretion must be exercised on a principled basis. So far as possible the determination of costs should be predictable and expeditious.12 The usual rule is that costs follow the event; the party who fails with respect to a proceeding pays costs to the successful party.13 Scale costs apply by default where cause is not shown to depart from them.14 Increased costs may be awarded where there has been a failure to act reasonably, while indemnity costs are reserved for truly exceptional circumstances.15
[13] Independent of the increased and indemnity costs rules, the Court may also consider any offer made on a without prejudice except as to costs basis.16 While the effect (if any) of such an offer is always at the discretion of the Court,17 r 14.11(3) and (4) of the High Court Rules 2016 provides that as a general rule:
(3)Party A is entitled to costs on the steps taken in the proceeding after the offer is made, if party A—
(a)offers a sum of money to party B that exceeds the amount of a judgment obtained by party B against party A; or
(b)makes an offer that would have been more beneficial to party B than the judgment obtained by party B against party A.
The offer may be taken into account, if party A makes an offer that—
(a)does not fall within paragraph (a) or (b) of subclause (3); and
(b)is close to the value or benefit of the judgment obtained by party B.
The Attorney-General’s costs claim in more detail
[14] There are essentially two main planks to the Attorney-General’s costs argument. The first is that the Crown has been the substantially successful party and should therefore be entitled to its costs in the proceeding.
11 High Court Rules 2016, r 14.1.
12 Rule 14.2(1)(g).
13 Rule 14.2(1)(a).
14 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27]–[28].
15 At [27]; and Hedley v Kiwi Co-operative Dairies Ltd (2002) 16 PRNZ 694 at [8].
16 High Court Rules, r 14.11.
17 Rule 14.11(1) and (2)(a).
[15] The defendant notes that there are two unreconciled streams of authority on how the Court should approach costs where a party has enjoyed partial success:
(a)One approach is that “partial success is still success”.18 On this view, the unsuccessful party is the party “adjudged liable to pay money to the other”, and the successful party will not lose their status merely because most of their claims failed. However, any failures might well provide a basis upon which to reduce costs.19
(b)The other approach involves a “realistic appraisal” of what the litigation sought to achieve, the position of the parties, the key issues in contest, and the overall result.20 This view, it is said, recognises success “may be reflected in a complete win, or a win in the sense that viewed overall, one party substantially succeeded”.21
[16] The Attorney-General submits that the nature of the proceeding and policy considerations favour adopting the latter approach involving a realistic and holistic appraisal of success. Given each chapter could have been its own discrete claim, it is said that Mr Taylor’s limited success should not be inherently preferred to the defendant’s success in opposing the majority of the claims, particularly as half of the hearing was spent defending serious allegations against Corrections and its staff founded on what was said to be a fabrication by Mr Taylor.
18 Weaver v Auckland Council [2017] NZCA 330, (2017) 24 PRNZ 379 at [26]. See also Midgen Enterprises Ltd v UV Water Systems Ltd [2017] NZSC 68.
19 High Court Rules, r 14.7.
20 In Middeldorp v Avondale Jockey Club Inc [2021] NZCA 238, the plaintiff in a judicial review application obtained partial success on one aspect of his claim, but failed on several others. The Court of Appeal determined that the defendant had been overall successful, and awarded it costs. The Supreme Court declined leave to appeal, noting that the lower courts’ assessments reflected the “unusual facts of the case” and were “determined by reference to the factual assessment as to who the successful party was on an overall basis”: Middeldorp v Avondale Jockey Club Inc [2021] NZSC 117 at [17].
21 Driessen v Earthquake Commission & Southern Response Earthquake Services Ltd [2016] NZHC 1048 at [23]. See also Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA), where the Court of Appeal held that in cases where parties had similar levels of success, the starting point was to consider how much time had been spent dealing with each of the issues and any other relevant matters as part of an overall endeavour to do justice to both sides in the circumstances of the case.
[17] It is submitted that adopting the “partial success is still success” approach would encourage plaintiffs with one strong claim to pursue excessive quantum or expand their claim to include unmeritorious (or even fictitious) allegations. This in turn has resource implications for the courts and respondents. A further difficulty with that approach is that Mr Taylor, a self-represented litigant, is not entitled to recover costs. Therefore, it is said, there can be no costs award made in Mr Taylor’s favour that can then be set off against costs applicable to those claims on which he failed:
Self-represented litigants should not be given free rein to use the Court’s scarce resources on substantially unmeritorious claims emboldened by an expectation that there will be no consequences for their pursuit.
[18] The second plank of the Attorney-General’s argument relates to the claim for increased costs. The Crown submits that Mr Taylor’s dishonest claims and evidence, together with persevering with hopeless arguments, would ordinarily justify indemnity costs. However, given his self-represented status, the alleged breaches of fundamental human rights, and his limited success on aspects of his claims, the Crown submits that a 50 per cent uplift is warranted for steps taken after the Calderbank offer. Further, the uplift should apply to all steps taken in relation to chapter five (the transfer from Waikeria Prison) given that this claim was based on a lie.
Consideration
[19] Stepping back and considering the success enjoyed by each party respectively, the nature of the proceedings, and the overall justice of the case, the appropriate outcome is to let costs lie where they fall. Given Mr Taylor’s apparently unintended self-represented status and his success in establishing breaches of his fundamental human rights, I consider it is not in the interests of justice to award costs against him. I have reached that view for several reasons.
[20] First, as the Crown acknowledges, Mr Taylor achieved a measure of success. He obtained declarations that his rights under ss 14, 21 and 23(5) of the Bill of Rights had been breached. Where a claimant has proven they have been subject to state treatment which contravenes their fundamental human rights, I would be slow to find that they have not been successful. In addition, the Court considered that damages totalling $18,000 were necessary to vindicate those breaches. While the Attorney-
General accepted from the outset that the nine strip searches were unlawful and in breach of s 21, the Calderbank letter of 18 February 2022 did not amount to an unqualified acceptance that Corrections had in any way breached Mr Taylor’s right under s 23(5). Nor did it accept that the ban on the Truth newspaper was unreasonable. Mr Taylor’s successes at trial were therefore significant. Given declarations are the primary form of vindication for breaches of fundamental rights, a monetary offer without an explicit public apology is insufficient in my view to mark Corrections’ misconduct. It follows that I am not persuaded that any real weight can be attached to the Calderbank offer made by the defendant shortly before the trial began.
[21] Second, in the context of a claim for breaches of the Bill of Rights I do not consider the defendant should benefit from Mr Taylor’s lack of legal representation. Mr Taylor’s self-represented status appears not to have been the result of a conscious choice but rather his former lawyer’s failure to act in his best interests.22 It is by dint of these circumstances that the Crown is not faced with the usual barrier to its costs claim.
[22] Similarly, had Mr Taylor been able to retain counsel it seems likely he would have received much needed advice on the merits of his claims in time to make an assessment as to whether it was wise to maintain them all to trial. This would have included a re-assessment of his claim relating to the transfer from Waikeria Prison, and the allegation that he was rendered unconscious, following receipt of the Crown’s evidence. It must be remembered that while the question of Mr Taylor’s physical condition during the transfer occupied a disproportionate amount of the hearing, it was an issue going to the measure of damages. His primary allegation was that the transfer was unlawful. While he did not succeed in that allegation, it cannot be said that the claim overall was so lacking in merit as to warrant an award of costs given his success
22 While Mr Taylor received legal aid to bring this proceeding in 2013, it appears that his assigned counsel, for reasons which are unclear, failed to take any substantive steps in advancing the claim for four years. This delay undoubtedly prejudiced Mr Taylor’s case in a number of ways, not least it may have resulted in aspects of his claim becoming time-barred. A Standards Committee found Mr Taylor’s former counsel guilty of unsatisfactory conduct and imposed a fine and censure. That decision was upheld on review. While Mr Taylor did not provide an explanation as to why he did not subsequently transfer his case to another legal aid counsel, it is perhaps understandable in the circumstances that he may have preferred to take the case on himself and avoid further delay. There is also a shortage of counsel who are able to bring civil claims on legal aid.
on a number of other claims. The fact that I found Mr Taylor’s claim to have been unconscious lacked credibility is not sufficient to warrant an award of costs given his success in relation to his other claims.
[23] Third, I consider making an award of costs in favour of the defendant in this case could have a deterrent effect on those subject to unlawful State treatment and that the Bill of Rights would be undermined. In Attorney-General v Udompun, the Court of Appeal observed:23
In our view, the Judge was not wrong in principle to award indemnity costs, even though not all of Mrs Udompun’s claims succeeded before him. In this area it may not always be appropriate to allow costs to follow the event. It is important to remember that Baigent damages are awarded only where other remedies are not sufficient and awards are, in any event, modest. Applying the normal costs rules in such circumstances may discourage litigants from bringing BORA claims. This would clearly have the result of weakening BORA protections. Indemnity costs could also, in suitable cases, be seen as necessary for a proper vindication of the right. This does not mean, however, that indemnity costs are to be awarded as a matter of course in BORA cases.
[24] Had Mr Taylor been represented by counsel, there is a good argument he would have been entitled to indemnity costs, at least in relation to the chapters on which he was successful. It follows that the plaintiffs’ lack of legal representation represents a double windfall for the defendant: not only is Mr Taylor deprived of the usual legal aid protection from adverse costs, the defendant is also not exposed to an adverse costs award in favour of the plaintiff.24
23 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186].
24 While it is true that self-represented litigants are not entitled to recover their costs, it is doubtful whether that state of affairs remains defensible. Following the Supreme Court’s decision in McGuire v Secretary for Justice McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335, the Rules Committee sought feedback on the issue of costs for litigants-in-person, and concluded that the current rule can no longer be justified. See the Rules Committee | Te Komiti mō ngā Tikanga Kooti “Costs for Self-Represented Litigants – Consultation Paper” (16 September 2021) at [2]. The Rules Committee’s logic is compelling and, in my view, relevant to the exercise of the Court’s discretion in the present case.
Conclusion and result
[25] The Attorney-General’s application for costs and disbursements is dismissed. Costs are to lie where they fall.
Isac J
Solicitors:
Meredith Connell, Auckland for Respondent
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