IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-1845 [2016] NZHC 1876
UNDER the Defamation Act 1992 BETWEEN
JORDAN HENRY WILLIAMS Plaintiff
AND
COLIN GRAEME CRAIG First Defendant
AND
NATHANIEL JOHN HESLOP, KEVIN STITT, ANGELA MARIA STORR Second Defendants
On the papers Appearances:
PA McKnight and A Romanos for plaintiff
First-named second defendant in personJudgment:
12 August 2016
JUDGMENT OF TOOGOOD J
[Plaintiff's application for costs against first-named second defendant]
This judgment was delivered by me on 12 August 2016 at 3:30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Williams v Craig [2016] NZHC 1876 [12 August 2016]
[1] The plaintiff, Jordan Williams is suing Nathaniel Heslop and others in defamation. On 4 December 2016, Mr Heslop filed an interlocutory application for summary judgment and for the determination of a separate question. On 27 April
2016, however, a few days before the interlocutory applications were to be heard, Mr Heslop discontinued them.
[2] Mr Williams now applies for increased costs against Mr Heslop in respect of the discontinued interlocutory applications. Mr Heslop argues that costs should be reserved until the substantive proceeding is determined but he says that, if costs are awarded, they should be on a category 2B basis without an uplift.
Background
[3] The relevant chronology of facts is as follows:
(a) On 29 July 2015, an allegedly defamatory brochure was said to have been published on the website of the Conservative Party of New Zealand. Mr Heslop was the party’s secretary at that time.
(b) On 18 August 2015, Mr Heslop was served with Mr Williams’s
statement of claim for the substantive defamation proceeding.
(c) On 18 September 2015, Mr Heslop filed his statement of defence.
(d) On 13 November 2015, Mr Williams amended his statement of claim. (e) On 4 December 2015, Mr Heslop filed an interlocutory summary
judgment application and an application for the determination of a separate question. The application for a determination of a separate question related to whether he was a “publisher” of the allegedly defamatory material.
(f) On 21 December 2015, Mr Williams’ counsel made a telephone call to Mr Heslop, offering to discontinue proceedings against Mr Heslop Mr Heslop agreed not to seek costs.
(g) On 22 December 2015, Mr Heslop rejected Mr Williams’s offer on the
basis that costs would be necessary.
(h) On 21 March 2016, this Court set down the hearing of Mr Heslop’s
applications for the week of 2 May 2016.
(i)On 31 March 2016, Mr Williams filed a second amended statement of claim, which further particularised the allegations of Mr Heslop’s involvement in publishing the allegedly defamatory material.
(j)On 27 April 2016, Mr Heslop withdrew and discontinued his application for summary judgment and for determination of a separate question.
[4] The substantive hearing is set down for trial beginning on 5 September 2016.
Costs claims
[5] Mr Williams seeks a total of $19,342.00 in costs and disbursements for
Mr Heslop’s discontinued application. This is claimed on a category 2B basis,…
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CaseChat Overview and Summary
The court was required to determine whether costs should be awarded to Williams for the discontinued interlocutory applications and, if so, the appropriate amount and basis. The legal issues included the applicability of Rule 15.23 of the High Court Rules, which generally requires a plaintiff who discontinues a proceeding to pay costs to the defendant, and the court's discretion to depart from this rule if it is just and equitable to do so. Additionally, the court had to consider whether costs should be reserved until the outcome of the substantive proceeding or awarded immediately, and the appropriate scale and uplift for the costs if awarded.
The court found that while Rule 15.23 applies by analogy to discontinued interlocutory applications, it was not appropriate to fix costs for Heslop's discontinued applications at that stage of the proceeding. The discontinuance of the applications was not entirely self-contained, as it directly related to Williams's pleadings against Heslop at the time. The court also considered the overall context of the substantive proceeding, including Williams's allegations about Heslop's failure to accept offers of settlement and the reasonableness of Heslop's applications. The question of costs on Heslop's application for summary judgment and his application for the determination of a separate question was therefore reserved for determination as part of the final determination of costs at the conclusion of the proceeding.
The court's decision was that it would not fix costs for the discontinued applications at that stage but would reserve the issue for determination at the end of the substantive proceeding. This decision balanced the principle that a discontinuing plaintiff generally pays costs with the need to consider the overall context of the litigation and the specific circumstances of the discontinued applications.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Legal Principle Established
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