TAYLOR v ATTORNEY-GENERAL [2023] NZHC 2718

TAYLOR v ATTORNEY-GENERAL [2023] NZHC 2718 [28 September 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-802[2023] NZHC 2718BETWEEN ARTHUR WILLIAM TAYLORPlaintiffAND ATTORNEY-GENERALDefendantCounsel: Plaintiff self-representedS M Kinsler and D M A Wiseman for DefendantJudgment: 28 September 2023JUDGMENT (No 4) OF ISAC J[Costs]Introduction[1] In this proceeding Mr Arthur Taylor brought wide ranging claims against theDepartment of Corrections in relation to his treatment as an inmate between June 2011and March 2018. The claims were almost all advanced as breaches of the New ZealandBill of Rights Act 1990, and included allegations of inadequate standards of detention,failures to provide appropriate opportunities for rehabilitation, and an occasion wherehe was said to have been assaulted by prison staff and transferred to another prisonunlawfully. 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 claimsin six chapters, following the way in which the parties had approached the case attrial.1 Overall, Mr Taylor succeeded wholly or in part on some of his claims but failedentirely in respect of others.[3] The Attorney-General now seeks costs against Mr Taylor. It is submitted thatMr Taylor enjoyed very limited success in the context of his claim. Ultimately, it issaid, the judgment represented a substantially worse outcome for Mr Taylor comparedto 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 contestedcivil 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 Sixup until 18 February 2022 when the Calderbank offer was made;(b) $76,699.38, representing 2B costs with a 50 per cent uplift for ChaptersOne, 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 theduration 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 areexcessive, 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 theproceeding, and the various issues that he was successful on. Mr Taylor denies acting1 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 successfullychallenged the ban of the Truth newspaper in Auckland prison in 2011 as an unjustified limit onhis right to freedom of expression.3 The Court found Mr Taylor lied about being unconscious during his transfer between Aucklandand Waikeria prisons in December 2017. While the Crown considers Mr Taylor's conduct inrelation to this chapter would ordinarily justify an award of indemnity costs, it seeks scale costswith a 50 per cent uplift to reflect Mr Taylor's status as a self-represented litigant who enjoyed adegree of success.unreasonably and submits that ventilation of his claims in court was necessary tovindicate fundamental human rights (particularly given Corrections' history ofrepeated failures to heed guidance by courts and human rights bodies) and given theAttorney-General's refusal to settle the claims on reasonable terms. Mr Taylor alsonotes that he was granted legal aid in 2013 to bring this proceeding but that, primarilydue to the failure of his assigned counsel to act on his instructions, he was ultimatelyforced to prosecute the case himself.4 He submits that had the case continued on legalaid, he would have faced no costs liability.5 Finally, Mr Taylor relies on amemorandum provided by Ms Hazel Heal, who assisted him in the trial.6Request to appoint counsel assisting[6] A preliminary issue is a request by Mr Taylor in his costs memorandum dated4 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 andthat engaging with the facts of the case exacerbates his difficulties.[7] The relevant principles are traversed in Erwood v Holmes.7 The power toappoint counsel assisting lies in the Court's inherent jurisdiction and is "entirely in theCourt's discretion".8 Ordinarily, the power will be exercised where there is a risk thatan important and difficult point of law will require a determination without havingbeen the focus of argument.9 Courts should take care not to encourage the role ofcounsel 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 toconduct a six-week trial on the issues he struggles with and has provided no evidence4 Mr Taylor cites a decision of a Legal Complaints Review Officer which appears to support hisclaim. The decision indicates that a lawyer was censured and fined for unsatisfactory conduct forfailing 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 againstan aided person in a civil proceeding unless the court is satisfied that there are exceptionalcircumstances.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 CJsaid, "The footing on which an amicus curiae is heard is that the person is willing to offer theCourt a submission on law or relevant fact which will assist the Court in a way in which the Courtwould not otherwise have been assisted."10 At [36].that he is suffering from a disability as a result. Moreover, I am not satisfied that thereare 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 submissionsMr 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 inrelation to three of his six claims (which I referred to as "chapters" in the substantivejudgment):(a) In chapter one, Mr Taylor claimed that his standards of detention whileon directed segregation at Auckland Prison in 2011 and 2012 wereinconsistent with his right to be treated with humanity and with respectfor 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 Taylorwith his minimum entitlement to daily exercise, and accommodatinghim in a cell with an operating and monitored CCTV camera whilst inthe High Care Unit, breached his right under s 23(5). I made adeclaration to that effect and awarded Mr Taylor $6,000 in damages. Idismissed the remainder of the claims under that chapter.(b) In chapter three, I made a declaration that the decision in 2011 toprohibit the Truth newspaper in the East Division of Auckland Prisonwas an unjustified limit on Mr Taylor's right to freedom of expressionunder s 14 of the Bill of Rights Act. I did not consider any furtherremedy was necessary to provide effective redress.(c) In chapter six, I held that subjecting Mr Taylor to nine strip searcheswhile in Corrections' custody between January and March 2018amounted to a breach of ss 21 and 23(5) of the Bill of Rights Act, andawarded Mr Taylor $12,000 in public law damages. I also found thatwhile Corrections' use of mechanical restraints on Mr Taylor during aprison transfer in March 2018 was unreasonable, it did not amount to abreach of s 23(5). It is relevant, for the purposes of the defendant's costsargument, that Corrections accepted at the outset of the proceedingsthat the strip searches and use of mechanical restraints were unlawful,and that the strip searches were unreasonable in breach of s 21 of theBill 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 2012amounted to a breach of a tortious duty to protect Mr Taylor from thefires 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 obligationunder s 52 of the Corrections Act 2004 to provide Mr Taylor withrehabilitation opportunities whilst he was held in D Block, and thatCorrections' efforts were consistent with his rights under ss 22 and23(5) of the Bill of Rights Act. I also held that significant portions ofMr 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 2017was made for an improper purpose, was otherwise unlawful, oramounted to a breach of s 23(5) of the Bill of Rights Act. I also heldthat the manner in which Mr Taylor was transferred was carried out ina lawful and humane manner. I also concluded that Mr Taylor was notrendered unconscious as a result of Corrections officers' efforts to movehim to Waikeria Prison.Relevant principles[12] All matters relating to costs are discretionary,11 although that discretion mustbe exercised on a principled basis. So far as possible the determination of costs shouldbe predictable and expeditious.12 The usual rule is that costs follow the event; the partywho fails with respect to a proceeding pays costs to the successful party.13 Scale costsapply by default where cause is not shown to depart from them.14 Increased costs maybe awarded where there has been a failure to act reasonably, while indemnity costs arereserved for truly exceptional circumstances.15[13] Independent of the increased and indemnity costs rules, the Court may alsoconsider any offer made on a without prejudice except as to costs basis.16 While theeffect (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 afterthe offer is made, if party A—(a) offers a sum of money to party B that exceeds the amount ofa judgment obtained by party B against party A; or(b) makes an offer that would have been more beneficial to partyB than the judgment obtained by party B against party A.(4) 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 byparty B.The Attorney-General's costs claim in more detail[14] There are essentially two main planks to the Attorney-General's costsargument. The first is that the Crown has been the substantially successful party andshould 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 onhow 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 theother", and the successful party will not lose their status merely becausemost of their claims failed. However, any failures might well provide abasis upon which to reduce costs.19(b) The other approach involves a "realistic appraisal" of what thelitigation sought to achieve, the position of the parties, the key issues incontest, 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 viewedoverall, one party substantially succeeded".21[16] The Attorney-General submits that the nature of the proceeding and policyconsiderations favour adopting the latter approach involving a realistic and holisticappraisal of success. Given each chapter could have been its own discrete claim, it issaid that Mr Taylor's limited success should not be inherently preferred to thedefendant's success in opposing the majority of the claims, particularly as half of thehearing was spent defending serious allegations against Corrections and its stafffounded 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 MidgenEnterprises 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 reviewapplication obtained partial success on one aspect of his claim, but failed on several others. TheCourt 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 reflectedthe "unusual facts of the case" and were "determined by reference to the factual assessment as towho 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] NZHC1048 at [23]. See also Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA), where theCourt of Appeal held that in cases where parties had similar levels of success, the starting pointwas to consider how much time had been spent dealing with each of the issues and any otherrelevant matters as part of an overall endeavour to do justice to both sides in the circumstances ofthe case.[17] It is submitted that adopting the "partial success is still success" approachwould encourage plaintiffs with one strong claim to pursue excessive quantum orexpand their claim to include unmeritorious (or even fictitious) allegations. This inturn has resource implications for the courts and respondents. A further difficulty withthat approach is that Mr Taylor, a self-represented litigant, is not entitled to recovercosts. Therefore, it is said, there can be no costs award made in Mr Taylor's favourthat 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'sscarce resources on substantially unmeritorious claims emboldened by anexpectation that there will be no consequences for their pursuit.[18] The second plank of the Attorney-General's argument relates to the claim forincreased costs. The Crown submits that Mr Taylor's dishonest claims and evidence,together with persevering with hopeless arguments, would ordinarily justify indemnitycosts. However, given his self-represented status, the alleged breaches of fundamentalhuman rights, and his limited success on aspects of his claims, the Crown submits thata 50 per cent uplift is warranted for steps taken after the Calderbank offer. Further, theuplift should apply to all steps taken in relation to chapter five (the transfer fromWaikeria 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 appropriateoutcome is to let costs lie where they fall. Given Mr Taylor's apparently unintendedself-represented status and his success in establishing breaches of his fundamentalhuman 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 Rightshad been breached. Where a claimant has proven they have been subject to statetreatment which contravenes their fundamental human rights, I would be slow to findthat they have not been successful. In addition, the Court considered that damagestotalling $18,000 were necessary to vindicate those breaches. While the Attorney-General accepted from the outset that the nine strip searches were unlawful and inbreach of s 21, the Calderbank letter of 18 February 2022 did not amount to anunqualified acceptance that Corrections had in any way breached Mr Taylor's rightunder 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 theprimary form of vindication for breaches of fundamental rights, a monetary offerwithout 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 tothe 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 notconsider 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 consciouschoice but rather his former lawyer's failure to act in his best interests.22 It is by dintof these circumstances that the Crown is not faced with the usual barrier to its costsclaim.[22] Similarly, had Mr Taylor been able to retain counsel it seems likely he wouldhave received much needed advice on the merits of his claims in time to make anassessment as to whether it was wise to maintain them all to trial. This would haveincluded 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'sevidence. It must be remembered that while the question of Mr Taylor's physicalcondition during the transfer occupied a disproportionate amount of the hearing, it wasan issue going to the measure of damages. His primary allegation was that the transferwas unlawful. While he did not succeed in that allegation, it cannot be said that theclaim overall was so lacking in merit as to warrant an award of costs given his success22 While Mr Taylor received legal aid to bring this proceeding in 2013, it appears that his assignedcounsel, for reasons which are unclear, failed to take any substantive steps in advancing the claimfor four years. This delay undoubtedly prejudiced Mr Taylor's case in a number of ways, not leastit may have resulted in aspects of his claim becoming time-barred. A Standards Committee foundMr Taylor's former counsel guilty of unsatisfactory conduct and imposed a fine and censure. Thatdecision was upheld on review. While Mr Taylor did not provide an explanation as to why he didnot subsequently transfer his case to another legal aid counsel, it is perhaps understandable in thecircumstances 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 beenunconscious lacked credibility is not sufficient to warrant an award of costs given hissuccess in relation to his other claims.[23] Third, I consider making an award of costs in favour of the defendant in thiscase could have a deterrent effect on those subject to unlawful State treatment and thatthe Bill of Rights would be undermined. In Attorney-General v Udompun, the Courtof Appeal observed:23In 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 thisarea it may not always be appropriate to allow costs to follow the event. It isimportant to remember that Baigent damages are awarded only where otherremedies are not sufficient and awards are, in any event, modest. Applying thenormal costs rules in such circumstances may discourage litigants frombringing BORA claims. This would clearly have the result of weakeningBORA protections. Indemnity costs could also, in suitable cases, be seen asnecessary 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 wouldhave been entitled to indemnity costs, at least in relation to the chapters on which hewas successful. It follows that the plaintiffs' lack of legal representation represents adouble windfall for the defendant: not only is Mr Taylor deprived of the usual legalaid protection from adverse costs, the defendant is also not exposed to an adverse costsaward in favour of the plaintiff.2423 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 doubtfulwhether that state of affairs remains defensible. Following the Supreme Court's decision inMcGuire v Secretary for Justice McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1NZLR 335, the Rules Committee sought feedback on the issue of costs for litigants-in-person, andconcluded that the current rule can no longer be justified. See the Rules Committee | Te Komitimō ngā Tikanga Kooti "Costs for Self-Represented Litigants – Consultation Paper" (16 September2021) at [2]. The Rules Committee's logic is compelling and, in my view, relevant to the exerciseof 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 JSolicitors:Meredith Connell, Auckland for Respondent