PRESCOTT v THOMPSON [2022] NZCA 163

PRESCOTT v THOMPSON [2022] NZCA 163 [5 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA304/2020CA478/2020 [2022] NZCA 163BETWEEN PETER RICHARD PRESCOTTApplicantAND VIOLET GEORGINA THOMPSONFirst Respondent DISTRICT COURT AT AUCKLAND Second RespondentCourt: Cooper PCounsel: Applicant in person R E Harrison QC for First Respondent No appearance for Second RespondentJudgment:(On the papers)5 May 2022 at 3 pmJUDGMENT OF COOPER P AS TO COSTSMr Prescott must pay costs in the sum of $5,511.50, comprised of:(a) $2,151 in respect of appeal CA304/2020;(b) $1,673 in respect of appeal CA478/2020; and(c) $1,687.50 in respect of the further costs claimed.____________________________________________________________________REASONS[1] On 11 November 2021, this Court refused two applications by Mr Prescott for extensions of time to file the case on appeal and apply for a hearing date in respect oftwo appeals, CA304/2020 and CA478/2020. As a result, the appeals were deemed abandoned under r 43 of the Court of Appeal (Civil) Rules 2005 (Rules).1[2] Counsel for Ms Thompson, Mr R E Harrison QC, now applies for costs in relation to work done on the substantive appeals, as well as for indemnity or increased costs in respect of the current costs application. Mr Prescott opposes both applications.Background[3] Mr Prescott filed his appeal in CA304/2020 on 8 June 2020 and his appeal in CA478/2020 on 24 August 2020.[4] The appeal CA304/2020 was originally deemed abandoned on 8 September 2020 after Mr Prescott failed to meet the requirements of r 43 of the Rules. On 7 December 2020, Mr Prescott applied for an extension of time under r 43(2).[5] As to the appeal CA478/2020, on 26 January 2021 the Deputy Registrar granted a suspension of the application of r 43 until 26 February 2021.2 That meant the last day by which Mr Prescott could apply for a hearing date and file the case on appeal was 26 February 2021. On 3 March 2021, Mr Prescott applied for an extension of time to do so under r 43(2).[6] Mr Prescott filed submissions in support of his application for an extension of time in appeal CA304/2020 on 25 January, 22 March and 12 May 2021. His submissions filed on 12 May 2021 also addressed his application for a further extension of time in appeal CA478/2020.[7] This Court refused Mr Prescott's applications on 11 November 2021.1 Prescott v Thompson [2021] NZCA 590.2 Court of Appeal (Civil) Rules 2005, r 43(1B)(b).Application for costs[8] For Ms Thompson, Mr Harrison submits the following attendances in respect of the two appeals are appropriately recoverable on a band A basis at the category 2 daily recovery rate of $2,390:CA304/2020Item 9 (0.2 days) Memorandum for Registrar (plus affidavit) dated 11 December 2020$478.00Item 11 (0.5 days) Submissions in opposition to leave application dated 4 February 2021$1,195.00Item 9 (0.2 days) Supplementary submissions in reply dated 12 April 2021$478.00TOTAL $2,151.00CA478/2020Item 9 (0.2 days) Memorandum for Registrar dated 2 February 2021$478.00Item 11 (0.5 days) Submissions in opposition to leave application dated 18 May 2021$1,195.00TOTAL $1,673.00Opposition[9] Mr Prescott does not challenge the quantum of the costs claim as set out at [8], but he opposes the costs application on the basis he has been legally represented since 4 September 2020. He relies on s 45(2) of the Legal Services Act 2011, which states: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.[10] Mr Prescott says there are no exceptional circumstances warranting a costs order against him. He says costs should lie where they fall.Reply[11] In reply, Mr Harrison submits that Mr Prescott has never been granted legal aid in respect of either appeal. His claims that he has been are false and have previously been scrutinised by this Court.3 In these circumstances, Mr Harrison makes an additional application claiming indemnity or increased costs of $1,687.50 for the present costs application.4Rejoinder[12] In rejoinder, Mr Prescott provides letters and emails from Legal Aid Services which he says prove he was legally aided, albeit on an interim basis.[13] However, Mr Harrison submits that the letters and emails Mr Prescott has adduced do not relate to the particular appeals this Court deemed abandoned in its judgment of 11 November 2021. While it may be the case that Mr Prescott has previously received legal aid in respect of other matters, it remains the case that he has at no time received legal aid for those specific appeals.Discussion[14] Mr Harrison is plainly correct that Mr Prescott has at no time been legally aided in respect of his appeals in CA304/2020 and CA478/2020. The letters and emails from Legal Aid Services that Mr Prescott has relied on do not refer to legal aid granted for these appeals, but rather to other matters. Accordingly, s 45(2) of the Legal Services Act does not bar this Court from awarding costs against Mr Prescott, and the application for costs made by Mr Harrison should be granted.[15] The application for increased or indemnity costs that Mr Harrison made in reply submissions dated 10 March 2022 is also granted. Mr Harrison claims a sum of $1,687.50, based on his "lower range" hourly rate of $750 (net of GST). I am satisfied it is appropriate to award increased costs reflecting the unnecessary costs to which3 Prescott v Thompson [2021] NZCA 186 at [14]–[15] and [21]–[23].4 This amount is said to reflect attendances of 2 hours and 15 minutes, calculated at counsel's "lower range" hourly rate of $750.Ms Thompson has been put in dealing with an obviously unmeritorious argument on Mr Prescott's part.Result[16] It is ordered that Mr Prescott pay costs in the sum of $5,511.50, comprised of:(a) $2,151 in respect of appeal CA304/2020;(b) $1,673 in respect of appeal CA478/2020; and(c) $1,687.50 in respect of the further costs claimed.Solicitors:Richard S Wood, Auckland for First Respondent