Lyttelton v Davison

[2018] NZHC 447

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000612 [2018] NZHC 447

BETWEEN

MARTIN VICTOR LYTTELTON

Plaintiff

AND

PAUL JOSEPH DAVISON QC

First Defendant

AND

MINTER ELLISON RUDD WATTS

Second Defendant

AND

AARON J LLOYD

Third Defendant

AND

CATHY A QUINN

Fourth Defendant

Hearing:

On the papers

Counsel:

Plaintiff - self represented

P R Rzepecky for the First Defendant
S Grieve QC and M C Harris for the Second, Third and Fourth Defendants

Judgment:

15 March 2018

JUDGMENT OF NATION J AS TO COSTS

[1]    In a judgment of 24 July 2017, I struck out civil proceedings filed by Mr Lyttelton against the abovenamed defendants. I held:

(a)        There were significant defects in the form of the pleadings.

LYTTELTON v DAVISON [2018] NZHC 447 [15 March 2018]

(b)        The claim in defamation was time-barred and there had been inadequate particulars. Even if Mr Lyttelton were to be successful in such a claim, he would not be entitled to anything other than nominal damages. His claim in defamation thus had no prospect of success and was an abuse of process.

(c)        The statement of claim did not set out adequate particulars to sustain a claim based on fraud. All defendants had a limitation defence to that allegation. The allegations were so obviously without merit and of such a scandalous nature that the claim in this regard was an abuse of Court proceedings.

(d)        The claims as to breach of fiduciary duty and withholding information were inadequately particularised and were an abuse of process.

(e)        Claims of negligence were statute-barred.

(f)         Mr Lyttelton claimed that Mr Davison QC had misled the Court and had been negligent in representing Mr Lyttelton on criminal charges. Mr Davison was engaged as counsel when Mr Lyttelton had pleaded guilty. The Court of Appeal had dealt with those claims when they heard Mr Lyttelton’s appeal against his original conviction. Given the decisions the Court of Appeal had reached and the evidence given by Mr Lyttelton on that appeal, it would have been an abuse of the Court process for those claims to have continued.

[2]    I held the defendants were entitled to costs and directed counsel to file memoranda. The defendants filed memoranda seeking increased costs. Mr Lyttelton’s memorandum in response should have been filed by 25 August 2017. He failed to do so and purported to file a notice of appeal with the Court of Appeal on 21 August 2017. In a minute of 28 August 2017, I pointed out to Mr Lyttelton that his filing of a notice of appeal did not operate as a stay of the judgment already given and he must file a memorandum as to costs by 5 September 2017. I indicated that, if he failed to do so, I would deal with costs on the basis of the memoranda already filed for the defendants.

[3]    I have now learnt that Mr Lyttelton’s appeal was not filed in a manner required by the Court of Appeal and has accordingly never proceeded.

[4]In this judgment, I fix the costs to which the defendants are entitled.

First defendant’s claim for costs

[5]    Costs are sought based on a 2B scale. Mr Lyttelton did not dispute that those costs for the steps taken for the first defendant in the proceedings would be $14,773.75 with disbursements (excluding GST) of $3,819.57. Those costs include a claim for second counsel at the hearing of the strike out application.

[6]    The first defendant has sought increased costs, relying particularly on r 14.6(3)(b)(ii) of the High Court Rules which permits the Court to order increased costs where a party has contributed unnecessarily to time or expense by pursuing an argument that lacks merit.

[7]    I accept the submission made for Mr Davison that increased costs are justified on the basis that Mr Lyttelton’s entire claim lacked merit.1 Mr Lyttelton knowingly made false and irrelevant allegations of fraud without any cogent basis for doing so.2 Mr Lyttelton acted unreasonably in bringing his claim against the first defendant. The proceedings were an abuse of process.

[8]    These circumstances, separately and together, justify an awarded of costs on an increased basis. Mr Davison is also entitled to costs for second counsel. It was appropriate for senior counsel to appear at the hearing. The allegations against Mr Davison, as against the other defendants, were an attack on their professional integrity and reputations. Mr Lyttelton can consider himself fortunate that he was not facing a claim for indemnity costs.

1      Refer N-Tech Ltd v Abooth Ltd [2012] NZHC 1167 at [108] per Kos J.

2      Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at 410.

[9]    I accordingly order the plaintiff pay to the first defendant costs of $22,160.63, being 2B scale costs with a 50 per cent uplift and an allowance for second counsel, and $3,819.57 in disbursements, a total of $29,980.20.

The second, third and fourth defendants

[10]   These defendants were all associated with the firm of Minter Ellison, and were all represented by the same solicitors and counsel. They also seek a single award of increased costs, calculated on a 2B basis, with a 50 per cent uplift and claim for second counsel. They had prepared additional memoranda and a hearing bundle for the proceedings. On a 2B basis, the schedule costs would be $18,787.75.

[11]   For the same reasons as justified an award of increased costs for the first defendant, an award of increased costs for the other defendants is also justified.

[12]   The second, third and fourth defendants are also entitled to costs for the appearance of second counsel at the hearing of the strike out application for the same reasons as referred to with regard to the first defendant’s claim.

[13]   I accordingly order the plaintiff to pay to the second, third and fourth defendants costs of $28,181.63, being 2B scale costs with a 50 per cent uplift and an allowance for second counsel, and $3,972.82 in disbursements, a total of $32,154.45.

Solicitors:

Gilbert/Walker, Auckland Stuart Grieve QC, Auckland.

Copy to: M V Lyttelton, Plaintiff.