Taylor v Attorney-General

[2021] NZHC 2303

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-802

[2021] NZHC 2303

BETWEEN

ARTHUR WILLIAM TAYLOR

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing:

On the papers

Appearances:

Applicant in person

D M Kinsler and V Squires for respondent

Judgment:

3 September 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]    By interlocutory application dated 11 March 2021 the plaintiff, Mr Arthur Taylor, sought orders relating to the use of material contained in a brief of evidence served by him in this proceeding for a purpose other than the proceeding itself, that is to say, for inclusion in a book entitled Prison Break: The Extraordinary Life & Crimes of New Zealand’s Most Infamous Escapee. That application was opposed by the Crown. In my judgment of 25 June 2021, I made the order sought by Mr Taylor on the grounds set out therein.1

[2]    At the conclusion of my judgment I reserved costs, indicating that if the parties were unable to resolve these they were at liberty to file memoranda in the usual way and I would deal with them on the papers.

1      Taylor v Attorney-General [2021] NZHC 1546.

TAYLOR v ATTORNEY-GENERAL [2021] NZHC 2303 [3 September 2021]

[3]    I now have memoranda from Mr Taylor and Mr Kinsler for the Crown concerning one costs-related issue which I am informed they are unable to resolve.

[4]    Mr Taylor is acting for himself in this proceeding. He is a “litigant in person”. It is common ground that a litigant in person is not entitled to recover costs (as is any party represented by solicitors and counsel). However, a litigant in person is entitled to recover reasonable disbursements under r 14.12 of the High Court Rules 2016.

[5]    The leading case is Re Collier2 where the Court of Appeal confirmed the position.

[6]    In this case, with the Court’s permission, Mr Taylor was assisted at the hearing by a McKenzie Friend, that is say someone who is not a solicitor or a member of the bar, and who has no right of audience, but is permitted by the court to assist a litigant in person throughout the hearing, usually by taking notes and suggesting matters that need to be covered or lines of argument.

[7]Mr Taylor’s McKenzie Friend was Ms Heal.

[8]    It seems that Ms Heal is associated with a company by the name of R & H Projects Ltd, and that that company has rendered an invoice to Mr Taylor dated 24 June 2021 in respect of attendances by Ms Heal that involved assisting Mr Taylor to prepare for and present his case. The company charged for attendances at the rate of $100 per hour and has invoiced Mr Taylor for 31.5 hours so that its GST exclusive invoice was for $2,950. It is this invoice that Mr Taylor seeks to recover as a disbursement.

[9]    As Mr Taylor says the term “disbursements” is defined in r 14.12 in the following terms:

14.12   Disbursements

(1)In this rule,—

disbursement, in relation to a proceeding,—

2      Re Collier (A bankrupt) [1996] 2 NZLR 438, (1996) 10 PRNZ 145 (CA).

(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.

[10]   Mr Taylor points to the Court of Appeal’s judgment in Re Collier where it was said that the courts should take a “reasonably liberal” approach in assessing what constitutes disbursements. There are cases in which litigants in person have recovered the costs of taking advice from a solicitor or barrister in the course of preparing for a hearing.3 Mr Taylor says that that is no different from what he is doing. He says that the amount involved is reasonable and that the Court should allow this disbursement.

[11]   The Crown opposes any costs order that includes this disbursement on two grounds:

(a)First, on the ground that Mr Taylor has not proved that he has incurred the disbursement; and

(b)Second, that it is not a disbursement within the categories that the courts have hitherto allowed.

[12]   As to the first point, the Crown’s contention is unquestionably correct. It is clear from r 14.12(2), and must in any event be obvious, that in order for a party to

3      See for example Knight v Veterinary Council of New Zealand HC Wellington CIV-2007-485- 1300, 31 July 2009 at [6]; Working Capital Solutions Holdings Ltd v Pezaro [2014] NZHC 2480 at [25]; Harrison v Keogh [2015] NZHC 3320 at [10]–[13]; Craig v Slater [2021] NZHC 30; Stringer v Craig [2020] NZHC 1021, (2020) 25 PRNZ 263 at [21]; and Smith v Attorney-General [2017] NZHC 821.

recover any disbursement it must establish that it has been incurred. This requires evidence. Generally, such evidence will consist of the party or an individual on the party’s behalf swearing an affidavit deposing that the disbursement was incurred in relation to the litigation (and usually that it has been paid). Mr Taylor has not done that. He has simply filed a memorandum to which he has attached the disbursement note.

[13]Technically, then, the disbursement has not been verified.

[14]   However, the Court will always allow a litigant — especially a litigant in person — an opportunity to rectify such an error, and for present purposes I proceed on the basis that if Mr Taylor were asked to do so he would be able to verify this disbursement.

[15]It is not suggested that the amount involved is unreasonable.

[16]   The more important point is whether it is a disbursement within a category that should be allowed.

[17]   Earlier, I mentioned some cases in which the courts have allowed litigants in person claim to disbursements in the form of fee notes from solicitors or barristers in relation to providing advice as to how the proceeding should be conducted.4 McGechan on Procedure explains that:5

The rationale is that the incurring of those costs has assisted in relieving the unsuccessful party from having to pay costs for the lay litigant’s legal representation of the hearing.

[18]   However, this approach has not been universal. In Sax v Simpson costs of preparatory work on submissions by a barrister for a litigant in person were held not to be recoverable.6

4 See [10].

5      Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HRPt14.10].

6      Sax v Simpson [2017] NZHC 1128 at [9].

[19]   This case must be decided against the backdrop of current consultation relating to costs for self-represented litigants being undertaking by the Rules Committee. In a report dated 15 March 2021 the former Clerk to the Rules Committee suggested that litigants in person should in most circumstances have an entitlement to claim costs (as opposed to disbursements) albeit on a basis different from those claimed by parties who are represented by solicitors and counsel.7 That simply serves to reinforce that the present rule is that an unrepresented party has no right to claim costs (as opposed to disbursements).

[20]   Mr Taylor was unable to direct me to, and I know of no authority supporting the proposition that, a litigant in person can claim disbursements reflecting advice and assistance with the conduct of the case from a party other than a solicitor or counsel.

[21]   Obviously, R & H Projects is not a legal practitioner, and nor does anyone suggest that any party associated with the company is a legal practitioner.

[22]   For the Court to allow a litigant in person to claim the cost of obtaining advice and assistance with the conduct of the case (as opposed to such disbursements as filing fees and the like) from a party other than a solicitor or counsel is tantamount to allowing costs, and would certainly be breaking new ground.

[23]   As matters stand, the position is that a litigant in person may only recover disbursements that fall into the categories identified in r 14.12(1) such as filing fees and the like, and the only disbursement relating to advice and assistance with the preparation and presentation of the case which the courts have to date allowed are reasonable fees rendered by legal practitioners. Mr Taylor — perhaps understandably

— would suggest this is unfair. However, this is not a case in which the Court would be justified in effectively expanding on those categories, even having regard to the need to adopt a “reasonably liberal” approach to disbursements. It appears to me that if that is to be done it should be done in the context of an amendment to the Rules. And, as already noted, the Rules Committee is currently undertaking consultation on this very issue.

7      Sebastian Hartley A New Approach to Costs for Self-Represented Litigants (The Rules Committee, Advice to the Rules Committee, March 2011).

[24]   I decline the plaintiff’s application for an order that the defendant pay the particular disbursement that is in issue.

Associate Judge Johnston

Solicitors:
Meredith Connell, Wellington for respondent