LINCOLN v ATTORNEY-GENERAL (COSTS) [2020] NZHC 1810

LINCOLN v ATTORNEY-GENERAL (COSTS) [2020] NZHC 1810 [24 July 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2017-409-76[2020] NZHC 1810BETWEEN RICHARD LINCOLNPlaintiffAND ATTORNEY-GENERALDefendantOn the papers:Counsel: Plaintiff in personK South and C White for DefendantJudgment: 24 July 2020JUDGMENT OF CHURCHMAN J(COSTS)TABLE OF CONTENTSIntroduction [1]Is Mr Lincoln legally aided? [4]Costs analysis [12]Calderbank offer and increased costs [12]Costs and NZBORA [35]Financial issues [42]Result as to costs [46]Outcome [51]Ethical issues [52]Introduction[1] Following a substantive judgment in favour of the defendant (the Attorney-General, representing the Police) in Lincoln v Attorney-General on 8 June 2020,1 theAttorney-General applied by memorandum dated 19 June 2020 for an award of costs.The Attorney-General seeks costs on a 2B basis together with disbursements and a50 per cent increase to reflect Mr Lincoln's conduct contributing unnecessarily to thecost of the proceeding.[2] The plaintiff, Mr Lincoln, responded by memorandum dated 26 June 2020,disputing an award of costs on the basis that he was, and continues to be, the recipientof legal aid under the Legal Services Act 2011 (the Act) and is therefore not liable forcosts under s 45 of that Act. Mr Lincoln also rejects the submission of the Attorney-General that there are exceptional circumstances which justify an award of costsdespite a grant of legal aid. Further, he submits that an award of costs would be unjustdue to his claim concerning breaches of the New Zealand Bill of Rights Act 1990(NZBORA), and that his lack of funds means he would be unable to pay for any costsimposed.[3] For the reasons that I will now set out, my conclusion is that while an awardof costs is appropriate, a reduced quantum from that claimed by the defendant iswarranted on the basis that Mr Lincoln appears to have financial difficulties that wouldrender it impractical to impose the full amount sought by the Attorney-General, as wellas the fact that some parts of Mr Lincoln's claim were settled during the course of thehearing and some adjustment to the costs otherwise payable needs to be made to reflectthat.Is Mr Lincoln legally aided?[4] Under s 4 of the Act, an "aided person" is defined as the following:(1) In this Act, unless the context otherwise requires,—1 Lincoln v Attorney-General [2020] NZHC 1252.aided person—(a) means a person who is granted legal aid under this Act or theformer Act; and(b) includes—(i) a person who is granted legal aid on an interim basis:(ii) a person whose grant of legal aid has been withdrawnunder section 30.[5] Section 45 of the Act sets out the liability of an aided person for costs in a civilproceeding:45 Liability of aided person for costs(1) If an aided person receives legal aid for civil proceedings, thatperson's liability under an order for costs made against him or herwith respect to the proceedings must not exceed an amount (if any)that is reasonable for the aided person to pay having regard to all thecircumstances, including the means of all the parties and their conductin connection with the dispute.(2) No order for costs may be made against an aided person in a civilproceeding unless the court is satisfied that there are exceptionalcircumstances.(3) In determining whether there are exceptional circumstances undersubsection (2), the court may take account of, but is not limited to, thefollowing conduct by the aided person:(a) any conduct that causes the other party to incur unnecessarycost:(b) any failure to comply with the procedural rules and orders ofthe court:(c) any misleading or deceitful conduct:(d) any unreasonable pursuit of 1 or more issues on which theaided person fails:(e) any unreasonable refusal to negotiate a settlement orparticipate in alternative dispute resolution:(f) any other conduct that abuses the processes of the court.(4) Any order for costs made against the aided person must specify theamount that the person would have been ordered to pay if this sectionhad not affected that person's liability.(5) If, because of this section, no order for costs is made against the aidedperson, an order may be made specifying what order for costs wouldhave been made against that person with respect to the proceedings ifthis section had not affected that person's liability.[6] In AA v LA Mander J, referring to Carter v Western Viaduct Marine Ltd,provided guidance on when a person may be considered as an "aided person" for thewhole or part of a civil proceeding:2[13] Although the submissions are not entirely clear, it appears the wife'scontention is that s 45 only applies to costs incurred after the legal aidapplication was confirmed. She relies on the decision in Carter v WesternViaduct Marine Ltd where the parties had been involved in a number ofproceedings over a period of several years. The plaintiffs had been grantedlegal aid at an early stage, but the grant was limited to a particular stage in theclaim and was soon exhausted. The plaintiffs then received a substantialpayout from ACC and were no longer eligible for legal aid for the remainderof the proceedings.[14] Relying on the predecessor to s 45 contained in the Legal Services Act2000, the plaintiffs argued that once they had been granted legal aid for partof the proceedings they were thereafter immune from any order of costs.Williams J rejected this argument:[23] there can be little doubt that when [s 45] speaks of liabilityfor costs orders made 'with respect to the proceedings' it must betaken to refer to that part of the proceedings for which the litigant isan 'aided person' and not to the whole of the proceedings irrespectiveof when legal aid is granted. The definition of 'aided person' must beread in the same light. Indeed, when the definition of 'aided person'refers to a person 'who is or has been' granted legal aid, that must referto the period when legal aid remains extant and not to the period whichcommences when the proceedings are filed and ends when they arefinally concluded.[24] That is consistent with the terms of the statute, the purpose ofwhich is to enable access to justice by 'people who have insufficientmeans to pay for legal services' (s 3(a)) which suggests that protectionfrom costs orders should be coterminous with an inability to meetlegal costs [25] It must follow that, even though grants of legal aid areretrospective from the date of the application, there is no basis instatute to take the view that once litigants are granted legal aid theyare immune from orders for costs at any stage of the proceeding, eitherbefore or after the grant begins or terminates. Put another way, whilethe statute understandably limits litigants' liability for costs otherwisepayable to them during the period when they have 'insufficient meansto pay for legal services', there is no reason to conclude that the2 AA v LA [2017] NZHC 646 (footnotes omitted and emphasis added). See also Carter v WesternViaduct Marine Ltd (2003) 16 PRNZ 1034 (HC).liability of a litigant for costs does not operate in the normal way whenthe insufficiency ceases.[15] Taken out of context, some of these remarks could be taken to meanthe material factor is the date on which legal aid is granted, and that a personis only 'legally aided' in respect of costs that are incurred after that date.However, taken as a whole and in the context of that case it is clear this wasnot the Court's meaning. Rather, the position of the Court was that s 45immunity can only attach to costs for which the legally aided party iseligible for legal aid. In that case the plaintiffs were not immune for thewhole of the costs because they were not eligible for legal aid with respectto the whole of the proceedings.[7] Mr Lincoln's status as an "aided person" under the Act was unresolved at thetime of the hearing. In his 26 June 2020 memorandum, Mr Lincoln stated that he hadreceived an interim grant of legal aid on 17 October 2019, which was continued on 19February 2020 and remains current, meaning that he constituted an "aided person"under s 4(1)(b)(i) of the Act from 17 October 2019 onwards.[8] In a minute dated 7 February 2020 (three days before the start of the substantivehearing) this Court highlighted the lack of clarity as to Mr Lincoln's legal aid status:[11] The actual status of Mr Lincoln's applications for legal aid has beenunclear. During the course of the teleconference earlier this week, Mr Tennetconfirmed that there had been a limited grant of legal aid of some 10 hours forthe purpose of providing an opinion as to the prospect of success of theseproceedings. He confirmed that this grant was now exhausted, and he had nogrant of legal aid in relation to the forthcoming hearing and accordingly wouldnot be appearing.[12] During the course of the teleconference at 9 am this morning,Mr Lincoln intimated that there was a further live legal aid application whichhe was awaiting an outcome in respect of. It was not clear whether this was afreshly lodged application or whether it was some form of appeal or review inrelation to an earlier application.[9] This Court explicitly stated in that minute, and in a minute dated 30 June 2020,that the issue of whether or not Mr Lincoln was in receipt of a grant of legal aid inrespect of the substantive proceedings was critical to the application then before theCourt in relation to security for costs.[10] A letter sent to Mr Lincoln from Legal Aid Services on 19 February 2020 statedthat he would receive an interim grant of 15 hours of legal aid for the purposes ofseeking an adjournment and preparing for and attending a judicial settlementconference. In giving reasons for the continuance of the interim grant, the letterexplicitly stated: "we do so because you [Mr Tennet] suggest this is the best forum inwhich to try to resolve Mr Lincoln's claim short of a formal hearing". However, asnoted in this Court's 30 June 2020 minute:[8] On the information available to the Court, Mr Tennet would seem tohave withdrawn as counsel prior to the letter of 19 February 2020 sent onbehalf of the Legal Services Commissioner. No judicial settlement conferenceever took place nor was such a conference ever scheduled.[9] The Court presently has no evidence to support to Mr Lincoln's claimthat he is currently in receipt of a grant of legal aid so as to cause s 45 of theLegal Services Act 2011 to apply.[11] On the information available to the Court, Mr Lincoln ultimately only receivedtwo interim grants of legal aid: the first on 17 October 2019 (for the purpose ofproviding an opinion as to the prospect of success of the proceedings), and the secondon 19 February 2020 (granted for a judicial settlement conference at a time when theCourt had never directed such a conference and the hearing had already commenced).Consequently, applying the approach set out in AA v LA, Mr Lincoln was not eligiblefor legal aid with respect to the whole of the proceedings, but rather had been giventwo interim grants to assist with specific pre-hearing matters. Because Mr Lincolnwas not an aided person in respect of the substantive hearing, for the purposes ofs 4(1)(b)(i), the immunity set out under s 45 does not attach to him in respect of thecosts incurred by the defendant in relation to the substantive hearing or in respect ofcosts incurred prior to 17 October 2019.Costs analysisCalderbank offer and increased costs[12] Given that Mr Lincoln failed in all his causes of action in the substantivehearing (and was not legally aided in respect of the hearing itself), the Attorney-General is entitled to an award of costs against Mr Lincoln in respect of the hearingand in respect of work undertaken prior to 17 October 2019, including interlocutoryapplications.3 The critical issue in these circumstances is whether, as submitted by the3 Under r 14.2(1)(a) of the High Court Rules 2016, the party who fails with respect to a proceedingor an interlocutory application should pay costs to the party who succeeds.Attorney-General, these costs should be increased, or whether there are any factorswhich would in fact support a reduction in what would otherwise be an appropriatecosts award.[13] Counsel for the Attorney-General submitted that costs should be awarded on a2B basis and put forward a starting point of $50,587 for costs and $896.95 fordisbursements. Counsel then submitted that this Court should consider increasing theaward of costs due to Mr Lincoln rejecting a Calderbank offer in January 2018,4 wherehe was offered the sum of $17,500 in full and final settlement of his claim excludingcompensation for his firearms and ammunition (which were being negotiatedseparately).[14] Mr Lincoln's rejection of this offer was, according to counsel, an unreasonableact contributing unnecessarily to the cost of the proceeding, which should justify a50 per cent increase in costs under r 14.6(3)(b)(v) of the High Court Rules 2016. Inparticular, counsel stressed that the offer came at a very early stage in the proceeding,was "extremely generous" in light of the outcome of the proceeding, and that even ifMr Lincoln had succeeded in his causes of action, it was unlikely that an award wouldhave exceeded the $17,500 offered. Counsel submitted that all these factors indicatedthat Mr Lincoln's decision was unreasonable and thus justified a 50 per cent increase.[15] In his 26 June 2020 memorandum, Mr Lincoln denied that a Calderbank offerhad ever been made. While Mr Lincoln appeared to concede that a settlement offer ofsome $17,000 had been made to him by the Attorney-General, he submitted that:The defendant made an offer to pay me $17,000 in full and final settlement ofall causes of action; leaving me to deal with him out of court over $30,000worth of property taken from me by his agentsthe Calderbank offer was inreality an offer to pay $17,000 in return for the forfeiture of $30,000 +/- ofprivate property. In other words the so called 'offer' amounted to me payingthe defendant $13,000 +/- on top of the $8,500 loss he incurred on me withhis malicious prosecution.[16] As a result, Mr Lincoln asserted that the offer made by the Attorney-Generalwould "never be accepted". In his written submissions, Mr Lincoln referred to the4 Calderbank v Calderbank [1976] Fam 93, [1975] 3 All ER 333 (CA).defendant's Calderbank letter (a copy of which was appended to the defendant'ssubmissions) in the following terms:The defendant did not make a Calderbank offer on those terms and is trying,yet again, to deceive the Court. I anticipate that the presiding Judge will againuse sophistry decide with the defendant but the issue is raised because it willsubsequently be a ground of appeal.The defendant made an offer to pay me $17,000 in full and final settlement ofall causes of action; leaving me to deal with him out of court over $30,000worth of property taken from me by his agents. The defendant flatly refusedto return that property or pay compensation for it (which he is supposed to bedoing according to law; regardless of how the property was acquired).The Calderbank offer was in reality an offer to pay $17,000 in return for theforfeiture of $30,000 +/- of private property. In other words the so-called"offer" amounted to me paying the defendant $13,000 +/- on top of the $8,500loss he incurred (sic) on me with his malicious prosecution.[17] This interpretation of the Calderbank offer set out in the defendant's letter of8 January 2018 is untenable. The relevant passages in the Calderbank letter said: police are making an offer of settlement in the amount of $17,5000 toencompass the entire claim against all defendants including those presentlyproposed to be joined.[18] The letter went on specifically to record that the offer did not relate to thequestion of return or compensation for firearms, magazines and ammunition originallyseized as part of the criminal investigation or held as a result of Mr Lincolnsurrendering his firearms licence and stated: "This offer is not intended to precludehim from pursing that issue as a separate matter."[19] Mr Lincoln's submissions note that during the course of the substantivehearing the question of compensation for his firearms and ammunition was settledbetween the parties. He submits:The defendant is not entitled to now claim costs on causes of action that heagreed were fully and finally settled and therefore discontinued at trial.[20] On the second day of the trial, the Court was informed by the parties that theissue of compensation was settled. The Court issued a brief oral judgment recordingthe terms of the settlement. The relevant passage of that judgment says:55 Lincoln v Attorney-General [2020] NZHC 134 at [2].Both counsel have confirmed to me that as a result of a payment of the sum of$10,795, which is accepted as being the value of the firearms, accessories andammunition seized, that the plaintiff now abandons causes of action 12 (whichrelates to a claim of misfeasance in a public office) and cause of action 14(which relates to trespass and conversion).[21] On the basis that these two of the 14 causes of action were settled, it is notappropriate for an award of costs to be made in respect of them.[22] It is clear that the Calderbank offer specifically excluded from its ambitMr Lincoln's claim in respect of the firearms, accessories and ammunition and, to thatextent, Mr Lincoln's submissions to the effect that the Calderbank offer was in realityan offer to pay $17,000 in return for the forfeiture of $30,000 is, as discussed above,untenable.[23] However, as the settlement recorded in the Court's judgment of 11 February2020, specifically connected the payment of $10,795 to the abandonment of causes ofaction 12 and 14, Mr Lincoln's rejection of the Calderbank offer cannot justify anyaward of costs in respect of those two causes of action.[24] The task for the Court is to determine the effect of refusal of the Calderbankoffer on causes of action 3, 4, 9, 10 and 13 which were ultimately pursued at thesubstantive hearing.[25] Under r 14.10 of the High Court Rules, a party to a proceeding may make awritten offer to another party at any time that is expressly stated to be without prejudiceexcept as to costs and relates to an issue in the proceeding. When an offer of thisnature is made and rejected, it may be relevant to a Court's consideration of increasedcosts under r 14.6(3)(b)(v). That provision dictates that a court may order a party topay increased costs if the party opposing costs has contributed unnecessarily to thetime or expense of the proceeding by failing, without reasonable justification, to acceptan offer of settlement whether in the form of an offer under r 14.10 or some other offerto settle or dispose of the proceeding.[26] However, under r 14.11, the effect of an offer made under r 14.10 to the awardof costs is ultimately assessed at the discretion of the court. The existence of an offerof this nature does not automatically justify an uplift,6 and the Court's discretion mustbe exercised in a particularised and principled manner.7[27] In Weaver v HML Nominees Ltd, Katz J helpfully set out a number of factorsmay impact an assessment of whether an award of costs should be increased followingthe rejection of a Calderbank offer. These include:8(a) the size of the offer relative to the actual costs of counsel;(b) the amount of the claim;(c) the reasonable expectations of the party that refuses the offer;(d) the amount of preparation for trial already undertaken;(e) whether the proceeding concerns an uncertain area of law;(f) whether the parties were in a position to assess the merits when theoffer was received;(g) the information available to the party who receives the offer and theextent to which they can to assess the offer;(h) the timing of the offer;(i) the conduct of the offeror.[28] When measured against the tests in Weaver v HML Nominees Ltd,9 in terms ofthe size of the offer relative to the actual costs of counsel and the amount of preparationfor trial already undertaken, the offer was made at an early stage at a time when littleby way of trial preparation costs had been incurred.[29] As far as the quantum of the claim is concerned, the damages claimed wereextravagant. $55,000 general/aggravated damages were claimed for cause of action 3(false imprisonment). This can be compared to $5,000 awarded in the case ofAttorney-General v Hewitt10 where a full Bench of the High Court confirmed that anaward of $5,000 damages for wrongful arrest and false imprisonment of some seven6 See Oceania Furniture Ltd v Debonaire Products Ltd HC Wellington CIV-2008-485-1701,16 September 2010 at [41]; and Junior Farms Ltd v Commissioner of Inland Revenue (No 2)(2011) 25 NZTC 20-085 at [17].7 See Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [22]; and Bluestar PrintGroup (NZ) Ltd v Mitchell [2010] NZCA 385 at [18].8 Weaver v HML Nominees Ltd [2016] NZHC 473 at [30] (footnotes omitted).9 Above n 8.10 Attorney-General v Hewitt [2000] 2 NZLR 110.and a half hours duration was "very much in line with the authorities".11 The DistrictCourt in that case had also awarded $5,000 exemplary damages. That award was notchallenged on appeal although the full Bench of the High Court said that, had it been,it would not have awarded any exemplary damages.[30] The District Court Judge had awarded $1,000 general damages for trespass.As the High Court found that there had been no trespass, it did not award any damages.Even allowing an adjustment for inflation, the damages sought by Mr Lincoln in thiscase were well above the levels likely to have been awarded had Mr Lincoln beensuccessful.[31] In Attorney-General v Hewitt, just as in the present case, damages were soughtboth at common law and under the New Zealand Bill of Rights Act (NZBORA). TheHigh Court accepted that the measure of damages at common law is similar toNZBORA damages,12 and also indicated that if common law damages are awarded,they must be deducted from NZBORA damages. The Court specifically referred tothe statement of Cooke P in Simpson v Attorney-General (Baigent's Case),13 whereCooke P had said:14If damages are awarded on causes of action not based on the Bill of Rights,they must be allowed for in any award of compensation under the Bill ofRights so that there will be no double recovery.[32] In addition to the $55,000 damages claim for false imprisonment, Mr Lincolnalso separately claimed $25,000 in the fourth cause of action (assault and battery,$5,000 general damages), on the 10th cause of action (trespass) general damages of$25,000, and compensatory damages of $5,000 on 11th cause of action (trespass) and,in respect of the 13th cause of action (malicious prosecution), special damages of$8,383 and $180 and general damages of $25,000. These figures were considerablylarger than the damages which might have been awarded had Mr Lincoln beensuccessful.11 At [65].12 At [73].13 Simpson v AG [1994] at 3 NZLR 667 at 678.14 Above n 10 at [69].[33] The areas of the law involved in this claim could not be described as"uncertain" and Mr Lincoln and his then lawyer would have been in a position toassess the merits of the offer received.[34] In terms of the causes of action that were not either abandoned or settled, thequantum of the Calderbank offer represents, on the basis of the case law in this area,a realistic estimate of the damages that the plaintiff might have obtained had he beensuccessful. These factors mean that, were it not for the fact that some aspects of theclaim were settled and for the other considerations that I am about to address, includingMr Lincoln's financial circumstances, some increase above scale 2B costs would bejustified as a result of Mr Lincoln's failure to accept a reasonable settlement offer.Costs and NZBORA[35] Before the implications of Mr Lincoln's financial circumstances are traversed,Mr Lincoln's submissions as to costs awarded in NZBORA proceedings must beconsidered. In his 26 June 2020 memorandum, Mr Lincoln submitted that because hisclaim alleged breaches of NZBORA, this Court should be averse to awarding costs,so as to avoid discouraging claimants from taking NZBORA claims in the future forfear of having costs awarded against them.[36] Rule 14.7(e) dictates that a Court may refuse to make an order for costs orreduce the costs otherwise payable under those rules if the proceeding concerned amatter of public interest, and the party opposing costs acted reasonably in the conductof the proceeding. Rule 14.7(g) also allows for a reduction in costs if "some otherreason" to reduce or refuse costs exists. That would include the fact that a claim isrelated to NZBORA.[37] The law in this area was recently summarised by the High Court in Prescott vNew Zealand Police15 where Gault J referred, in his costs judgment, to a comment hehad made in the substantive proceedings, Prescott v Police where he had said:16It is unlikely that costs would be awarded against an unsuccessful plaintiff ifa NZBORA claim is bona fide and found to have had some merit even though15 Prescott v New Zealand Police [2020] NZHC 847.16 Prescott v Police [2019] NZHC 3376 at [113] (footnotes omitted).unsuccessful, especially if the plaintiff sought no more than a vindication ofrights, and the conduct of the case did not warrant an adverse costs order.[38] The prerequisite for a refusal to award costs on the basis that the case involveda NZBORA claim are therefore:(a) that the claim was bona fide and found to have some merit;(b) that the plaintiff sought no more than a vindication of rights; and(c) the conduct of the case by the plaintiff did not warrant an adverse costsorder.[39] In the present case neither the NZBORA claims (which sought variousdeclarations rather than damages) or the related common law claims had merit. TheNZBORA claims were coupled with claims for substantial common law damagesarising out of the same factual matrix that was relied on in relation to the NZBORAclaims. The first two criteria for refusing an award of costs on the grounds that thecase related to a NZBORA claim as set out by Gault J in Prescott v Police, are not met.[40] The memorandum filed on behalf of the defendant in relation to costs tookissue with the plaintiff's conduct of the proceedings. That is the third of the relevantcriteria. The fact that on 4 February 2020, Mr Lincoln advised the defendant he wouldbe abandoning causes of action 1, 2 and 8 without explanation was said to have causedthe defendant unnecessary expense. Also referred to was Mr Lincoln's actions in notfiling a new statement of claim as directed to by the Court detailing those causes ofaction he was abandoning but filing a statement of claim which purported to add newcauses of action.[41] Mr Lincoln's vacillation as to what claims he was advancing and his lateabandonment of some causes of action was unhelpful and I accept that it would haveinconvenienced the defendant. It means that he does not meet the test for no costsaward being made on the grounds that NZBORA matters were involved. However, aspart of the balancing exercise in trying to achieve an outcome which reflects the factorsreferred to in [34] above, I decline the uplift sought by the defendant.Financial issues[42] Mr Lincoln has submitted that there is "zero chance" of payment being madeon any costs order, as a result of him being "impecunious and destitute, with no fundsor realisable assets left". He also stated that any costs order would result in hisinsolvency, making it difficult to pay his costs from a previous proceeding with theNew Zealand Law Society, as well as his outstanding student loan.[43] As with NZBORA claims, financial hardship is a factor that may be consideredby the Court when assessing whether costs should be reduced under r 14.7(g). In Foniv Foliaki Muir J, after assessing the current case law, articulated relevant principles toguide the Courts in considering financial hardship as a factor under r 14.7(g):17(a) Financial hardship is not an answer to a claim for a costs award;(b) Costs awards must be made at a meaningful level, even against animpecunious party, particularly where the case is found to have lackedmerit; and(c) There is a preference for evidence of limited financial means to beprovided in the form of a sworn affidavit (where this is not alreadyestablished in the substantive proceedings).[44] In articulating the first principle, Muir J relied on Chesterfields Preschools Ltdv Commissioner of Inland Revenue as authority for the proposition that financialhardship will not immediately negate a claim for a costs award. In that case the Courtof Appeal stressed that:18Hardship is not usually regarded as a ground to resist an award of costs incircumstances where the opposite party has been put to unnecessary expensein responding to an application or appeal.[45] I take into account the fact that Mr Lincoln has not filed a sworn affidavit toevidence his limited financial means, and the general observation that financialhardship is not immediately an answer to an award of costs. However, some practicalconsideration must still be given to the fact that Mr Lincoln does not appear to havethe financial means to pay the quantum of costs sought by the defendant. Therefore,although the defendant is entitled to an award of costs set at a meaningful level, I17 Foni v Foliaki [2018] NZHC 3126 at [5] (footnotes omitted).18 Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7].consider it appropriate to award costs on a 2B basis rather than on an uplifted basis assought by the defendant.Result as to costs[46] For the reasons discussed above, I fix costs on a 2B basis, but such costs arecalculated as from the date of the commencement of the proceedings to 17 October2019 and then from the date of the commencement of the substantive hearing inFebruary 2020.[47] The plaintiff has claimed disbursements of $896.95. Under r 14.12 of the HighCourt Rules, disbursements can include fees of Court for the proceeding, and must bespecific and reasonably necessary to the conduct of the proceeding, and reasonable inamount. Given that the disbursements sought in this case all relate to filing fees fordifferent documents required for the Attorney-General's defence of the case, I considerthem to satisfy all the necessary elements under r 14.12 and award them.[48] There is one further issue of costs that was not addressed by either party intheir submissions, and this is the fixing of costs and disbursements against Mr Lincolnby Associate Judge Matthews following an interlocutory application filed byMr Lincoln and decided on the papers on 5 June 2018.19[49] Mr Lincoln had initially sought declarations that his firearms licence and itsendorsements continued to be in force but then discontinued that application.Associate Judge Matthews acknowledged that costs and disbursements of $2,870.50sought by the Attorney-General were "entirely reasonable" in the circumstance butindicated that the issue was still moot and would be determined at trial.20 TheAssociate Judge therefore fixed costs and disbursements for the interlocutoryapplication in the sum of $2,870.50 but reserved the issue whether they were payableto be determined at trial.2119 Lincoln v Attorney-General – costs judgment of Associate Judge Matthews HC ChristchurchCIV-2017-409-0765 June 2018.20 At [3].21 At [4].[50] On the basis of the evidence before me, it seems that Mr Lincoln was not inreceipt of legal aid in respect of this interlocutory application and accordingly is liablefor costs in respect of it. In the absence of any obvious reason why the costs fixed byAssociate Judge Matthews should not be payable, I direct that they are to be paid.Outcome[51] The defendant is directed to file a new schedule of costs calculated on thefollowing basis:(a) the sum of $2,870.50 fixed by Associate Judge Matthews in respect ofthe costs and disbursements on the interlocutory application is payable;(b) the sum of $896.95 in respect of disbursements in relation to the firstdisbursements is payable; and(c) the defendant is entitled to costs in relation to work undertaken up to17 October 2019 and work undertaken from the commencement of thesubstantive hearing on 2B basis.Ethical issues[52] In his written submissions in relation to costs, Mr Lincoln made a number ofintemperate and offensive comments. If such comments had been made by counsel,they would have been referred to the New Zealand Law Society (NZLS) for adisciplinary investigation.[53] Mr Lincoln has unsuccessfully applied for admission as a barrister andsolicitor. He may repeat that application at some stage in the future. On the basis thatthe contents of his submissions in respect of costs are potentially relevant to any suchfuture application, I direct that a copy of this judgment and Mr Lincoln's costssubmissions be referred to the NZLS to be held on file by them.Churchman JSolicitors:Raymond Donnelly & Co, Christchurch for Defendantcc: R Lincoln