Cutting v Liu [2014] NZHC 1063; [2014] 3 NZLR 224; (2014) 22 PRNZ 67 (20 May 2014)

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004979 [2014] NZHC 1063

BETWEEN	DEREK EDWIN CUTTING Appellant
AND	YIUCHUAN (JESSE) LIU KIN TO (STEVEN) LAU DINAH QIU Respondents

Hearing:	8 April 2014
Appearances:	Simon Jefferson QC for the Appellant Respondents in Person Stephen Mills QC as Amicus Curiae
Judgment:	20 May 2014

_{RESERVED JUDGMENT OF MOORE J}

This judgment was delivered by on 20 May 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

CUTTING v LIU & ORS [2014] NZHC 1063 [20 May 2014]

Introduction

[1] This is an appeal against the decision of Judge P A Cunningham delivered on

1 November 2013. Her Honour refused the plaintiff’s application for leave to allow Mr Keene, an Auckland barrister, to appear as both counsel for the plaintiff and as a witness in a claim to recover his fees.

Factual background

[2] The appellant, Mr Cutting, is an Auckland solicitor who, in 2008, briefed Mr Keene to act as counsel for the respondents in relation to a dispute they had with an Auckland secondary school.

[3] Mr Keene filed the proceedings in the Auckland District Court. However, by December 2008 the relationship between Mr Keene and the respondents soured. They expressed dissatisfaction in Mr Keene’s performance and terminated his engagement.

[4] Although substantial fees had been billed for and paid, approximately

$15,000 remained owed by the respondents for Mr Keene’s services.

[5] The respondents refused to pay the amount outstanding although they did meet all of Mr Cutting’s fees.

[6] The respondents complained to the New Zealand Law Society about the quantum of the fee as well as aspects of Mr Keene’s performance. The filing of the complaint had the effect, through the operation of s 161 of the Lawyers and Conveyancers Act 2006, of effecting a temporary stay of the District Court proceedings until final disposition of the complaint.

[7] The costs assessor upheld Mr Keene’s fee. The Standards Committee resolved to take no further action, a decision which was later confirmed by the Legal Complaints Review Officer on 5 October 2010.

[8] Mr Cutting’s action for the recovery of Mr Keene’s fees was reactivated on

14 October 2010 when the plaintiff successfully applied for judgment by default. Judgment was entered on 18 October 2010.

[9] On 15 November 2010, the respondents applied to set aside the judgment. Their application was dismissed in the District Court on 20 January 2011. They appealed to this Court. Of the grounds on appeal, two have some relevance to the present appeal, namely:

(a) Mr Keene could not appear as counsel because he had made an affidavit containing controversial material; he was in any event conflicted; and his appearance at Court was in breach of the intervention rule;

(b) Mr Keene did not competently carry out his task as counsel.

[10] Williams J allowed the appeal, setting aside the judgment on the basis that the

30 day requirement had not been met in the case of each of the appellants. ¹

[11] On the issue of whether Mr Keene should be permitted to appear as counsel in the District Court proceeding and/or in this Court, Williams J, while not expressing a concluded view on whether it was determinative of the appeal, noted that Mr Keene should not be allowed to appear in either jurisdiction.

[12] On 8 August 2011, the respondents filed a statement of defence and three months later filed an amended statement of defence and counterclaim. Both the statement of defence and counterclaim contain serious allegations against Mr Keene regarding the provision of his professional services. They include claims he failed to follow instructions, delayed in providing advice, failed to act independently, undertook excessive and unnecessary work, failed to advise his charge out rates, concealed documents from his clients, entered into settlement discussions without the authority of his clients and various further and related allegations.

[13] In his statement of defence to the counterclaim filed on 12 December 2011

Mr Cutting denied the allegations Mr Keene had acted unprofessionally.

[14] Following Williams J’s decision, the plaintiff filed an application in the District Court on 16 February 2012 seeking leave for Mr Keene to act as both counsel and a witness on the plaintiff’s claim including appearing on various pre- trial matters.

[15] The application was later expanded to include an application under s 57 of the District Courts Act 1947 seeking leave for Mr Keene to act as the plaintiff’s agent. I note there also appears to have been an application to move the applications to this Court. It is not apparent what happened to that application. It is not mentioned in her Honour’s decision and the assumption is it was abandoned before the hearing.

[16] The remaining applications were heard by Judge Cunningham on

8 November 2012.

[17] For various reasons set out in her judgment, Judge Cunningham was unable to deliver a decision until 1 November 2013.

[18] On 1 November 2013, her Honour declined the applications.²

[19] The plaintiff now appeals that decision.

The District Court decision

[20] After traversing the procedural history leading up to the filing of the amended application, Judge Cunningham summarised the respective arguments of the parties.

[21] Her Honour identified five issues for determination, namely: ³

(a) Is Mr Keene barred from appearing as counsel because of the rule in

Atkinson v Pengelly?⁴

(b) Is this an appropriate case for the Court to allow Mr Keene to act as counsel and a witness?

(c) Is there a policy reason preventing barristers in Mr Keene’s position from acting as counsel when the instructing solicitor is suing a former client for fees owed to the barrister?

(d) Alternatively, is s 57(1) of the District Courts Act 1947 available for the purpose of appointing Mr Keene as the plaintiff’s agent in this case?

(e) If the answer to all of the above is “No”, does this Court have jurisdiction to grant the application?

[22] In relation to the first issue, her Honour concluded that the rule in Atkinson v Pengelly was not a bar to Mr Keene acting as counsel because he was not the plaintiff. However, after reviewing what her Honour regarded as binding authorities of higher courts and considering the effect of r 13.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, her Honour concluded that Mr Keene could not be counsel and a witness in the same cause. Of particular significance was the controversy implicit in the statement of defence and counterclaim which would necessarily require Mr Keene to give evidence.

[23] The alternative argument under s 57 was dealt with in economical fashion by her Honour finding the provision did not assist Mr Keene because it was “simply a device to get around the law in Hutchinson v Davis, R v Liu and the Greenmount

_{Manufacturing Limited v Southborne Investments Limited case”.}⁵

³ _{At [34].}

⁴ _{Atkinson v Pengelly [1995] 3 NZLR 104 (HC).}

⁵ Cutting v Liu, above n 2, at [59].

[24] Finally, her Honour concluded she did have jurisdiction to make the orders pursuant to the District Court’s inherent power to regulate its own process and, in particular, to ensure fair trial procedures. She declined the applications.

Nature of this appeal

[25] In argument before me, it was accepted by Mr Jefferson that this is a general appeal by way of re-hearing. As such, the principles set out in Austin, Nichols & Co Inc v Stitching Loadstar apply. ⁶ Mr Jefferson urged me to take a different view from the District Court on the merits.

Arguments on appeal

The plaintiff

[26] Mr Jefferson, in comprehensive and helpful submissions, argued that r 13.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Care) Rules 2008 (“the rules”) is focused on lawyers and counsel engaged in litigation for a client. He submitted that Mr Keene and the plaintiff are not engaged in litigation for a client but, instead, are engaged in litigation for themselves to recover an unpaid fee from the respondents. The rules were not breached because in this case Mr Cutting was suing for Mr Keene’s fee as plaintiff. He described it as an unnecessarily technical approach to prevent Mr Keene acting as counsel due to the rule in Atkinson v Pengelly.

[27] In the circumstances, he submitted that there should be no reason why Mr Keene should not be treated as effectively a litigant in person. There was no conflict of interest as between Mr Cutting and Mr Keene given the community of interest they share in recovering Mr Keene’s fee.

[28] He submitted that just as Mr Cutting could appear as both the primary witness and as counsel in seeking to recover the unpaid fee, so too should Mr Keene, commenting that preventing Mr Keene acting as advocate and witness was to prefer

_{form over substance.}

⁶ Austin, Nichols & Co Inc v Stitching Loadstar [2008] 2 NZLR 141; [2007] NZSC 103.

[29] Mr Jefferson also submitted that there were strong policy reasons against a general rule prohibiting barristers from being treated as litigants in person when acting for their instructing solicitors to recover an unpaid fee. In cases involving modest claims for fees, barristers would have little choice but to abandon their claims because engaging independent counsel would prove uneconomic.

[30] He went further. He submitted that an unscrupulous defendant could unnecessarily prolong and needlessly complicate proceedings in order to improperly inflate the cost of recovery action and thereby add a further disincentive for the plaintiff in continuing recovery action. He submitted the defendants in the present proceedings were adopting such a course.

[31] This submission was developed by reference to other policy considerations. Mr Jefferson observed that if strict adherence to the rule in Atkinson v Pengelly was insisted upon, barristers would be unlikely to act for impecunious clients unable to pay funds “up front”, thereby depriving legal representation to those deserving of it but ineligible for legal aid or other forms of litigation assistance.

[32] Alternatively, Mr Jefferson relied on s 57 of the District Courts Act 1947 submitting that if the Court was not prepared to treat Mr Keene as effectively a litigant in person it should find “special circumstances”.

The respondent

[33] Appearing on his own account, Mr Liu filed written submissions which not only traversed the complex history of the case, but also focused on what the respondent claimed was a “significantly wide area of conflict of interests”.

[34] In oral submissions, Mr Liu, unsurprisingly, aligned himself with the submissions of Mr Mills QC as amicus curiae.

[35] He described Mr Keene’s proposal to appear as counsel and as a witness as controversial. In developing this submission he emphasised that Mr Keene’s conduct was central to the resolution of the issues on the substantive claim by referring to the amended statement of defence and counterclaim and the particulars

which, in his submission, demonstrated the extent of the breaches of a duty of care Mr Keene owed to his clients including the various assertions referred to at [9] and [12] of this judgment.

Amicus curiae

[36] Mr Mills commenced his detailed and careful submissions by observing that as a barrister sole, Mr Keene is obliged to comply with the intervention rule.⁷

[37] He pointed out that the professional standards set out in r 14.5 appear under the heading, “Independence in litigation”. This principle is reflected more specifically in rr 13.5.1 and 13.5.3.

[38] Mr Mills observed that r 13.5.1 is mandatory in its language, prohibiting counsel acting where there may be a requirement to give evidence. The only exception is where the evidence is non-contentious. Mr Mills noted there seemed general acceptance that Mr Keene’s evidence would be contentious.

[39] Mr Mills commented on r 13.5.3. Also expressed in mandatory language this rule prohibits a lawyer acting as counsel where their conduct or advice is an issue. The only exception available to Mr Keene would be if he could be treated as a “lawyer acting for himself”.

[40] Mr Mills submitted Mr Keene could not be viewed as “acting for himself” because he would be suing directly for his fee, contravening both the intervention rule and the principle of barristerial practice confirmed in Atkinson v Pengelly.

[41] On the question of the wider policy arguments involved, Mr Mills observed the applicant relied heavily on the fact that if Mr Keene cannot act for himself to recover his fee, it will be uneconomic, especially if the respondents are aware of this vulnerability and are using it to their advantage in their litigation strategy. Mr Mills,

_{while not unsympathetic to Mr Keene’s dilemma, observed that this outcome is a}

⁷ Lawyers and Conveyancers Act (Lawyers: Conduct and Care Rules) 2008 r 14.4; Atkinson v Pengelly, above n 4, at 111. Greenmount Manufacturing Limited v Southborne Investments Limited [2008] NZHC 1806; (2008) 19 PRNZ 84.

risk inherent not only in terms of the arrangement he made with Mr Cutting, but also in the mode of practice he had chosen through practising as a barrister sole.

Decision

Jurisdiction and the Rules

[42] I first consider the jurisdiction of the Court to refuse leave for counsel to act. The rules were made by the New Zealand Law Society and approved by the Minister of Justice in accordance with Part 6 of the Lawyers and Conveyancers Act 2006. Section 107(1) of the Act makes them binding on all lawyers.

[43] However, although the rules bind members of the legal profession they do not bind this Court. As the Court of Appeal observed in Black v Taylor the Court’s power to restrain a barrister from acting arises from its inherent jurisdiction where the interests of justice so require to control the conduct of proceedings before the Court. ⁸

[44] On the jurisdiction to regulate counsel’s right to appear, McKay J stated:⁹

It is essential to the functioning of the Court as a Court of justice that it must be able to prevent a barrister acting as counsel in a matter in which he has a conflict of interest, or in which he appears to have a conflict of interest such that justice will not be seen to be done. The fact that a barrister who so acted would be subject to the disciplinary powers contained in Part VII of the Law Practitioners Act 1982 does not in any way diminish the inherent jurisdiction of the Court to control proceedings before it in such a way to enable justice to be done and to be seen to be done.

The position in New Zealand is accurately expressed in the following passage in the judgment of a Divisional Court of the Ontario Court (General Division) in Everingham v Ontario:

It is within the inherent jurisdiction of a superior Court to deny the right of audience to counsel when the interests of justice so require by reason of conflict or otherwise. This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached.

[45] His Honour then referred to the rule making powers contained in the predecessor to the Lawyers and Conveyancers Act 2006, commenting:¹⁰

Pursuant to that power, the council [of the New Zealand Law Society] has made rules which are contained in the society’s code of ethics. The code contains as r 1.06 a rule dealing with situations such as the present. That rule is of relevance to the exercise of the Court’s inherent jurisdiction as being a statement, by the responsible body of the profession invested with the statutory power to make rules regulating the conduct of practitioners, as to what is an appropriate standard in a conflict situation.

[46] There is no doubt the Court has an inherent jurisdiction not only to refuse leave for counsel to act, but also to prevent or restrain counsel from acting where the interests of justice require it.

[47] The rules in issue in this proceeding fall under the heading, “Independence in Litigation”. The rules which I shall consider below go to the heart of actual independence and the appearance of independence in our Courts, which, as stated in Black v Taylor, underpins the reasons for the Court’s jurisdiction in this area.

Intervention rule and rule 14.4

[48] Under r 14.4 Mr Keene, as a barrister sole, is obliged to comply with the intervention rule. As such he may not accept instructions to act for another person other than one who holds a practising certificate as a barrister and solicitor.

[49] Furthermore, it is well settled that central to the relationship between a barrister sole and their client is the prohibition against a barrister suing for their unpaid fees. Tipping J in Atkinson v Pengelly put it this way: ¹¹

Throughout my time in the profession, I have never heard it seriously suggested that barristers sole either have or should have the right to sue their instructing solicitors or their lay clients for their fees. While the English rule that they cannot do so might be thought in some quarters to be commercially anomalous, the rule is of considerable antiquity and can fairly be said to be a fundamental feature of the relationship between a barrister and his clients, both lay and professional. It is now firmly established by the Law Practitioners Act 1982 that a solicitor may include counsel’s fees as a disbursement in his bill to the lay client. If the bill is not paid, the solicitor may sue for and recover the whole bill including counsel’s fees.

[50] I agree with Mr Mills that the combined effect of the intervention rule and the prohibition against a barrister suing his client for unpaid fees means unless Mr Keene can bring himself within a known exception, his application must be considered on the basis that he will be acting as counsel in a matter in which his conduct and advice will be an issue.

[51] As a consequence, r 13.5.3 is engaged. It provides:

A lawyer must not act in a proceeding if the conduct or advice of the lawyer or of another member of the lawyer’s practice is in issue in the matter before the court. This rule does not apply where the lawyer is acting for himself or herself, or for the member of the practice whose actions are in issue.

[52] This rule is couched in mandatory language. It prohibits any lawyer from acting in a proceeding if their conduct or advice is in issue in those proceedings.

[53] The imperative to avoid conflict or the appearance of conflict underpins the principle contained in this rule extending, as it does, not only to the conduct or advice of the lawyer concerned but also more widely to that of another member of the lawyer’s practice.

[54] The only exception is where the lawyer is acting for himself or herself.

[55] Mr Jefferson submitted that, in effect, Mr Keene is acting for himself; to view it otherwise is to adopt what he described as an unnecessarily technical approach.

[56] The difficulty with that submission, as Mr Mills observed, is that Mr Keene cannot be acting on instructions for the purpose of compliance with the intervention rule but then act without an instructing solicitor for the purpose of bringing himself within r 13.5.3. On any analysis, he remains a barrister suing his lay client for a fee contrary to the well established rule reaffirmed in this jurisdiction in Atkinson v Pengelly.

[57] In support of the submission that a barrister sole may be instructed for one purpose but act on his own account for another, Mr Jefferson argued both in this Court and in the District Court that Strachan v Denbigh Property Limited¹² is supporting authority.

[58] In that case the plaintiff unsuccessfully applied for an order prohibiting counsel for the intervening shareholders, Mr R A Moodie, from acting as counsel for a family trust of which he was a trustee and beneficiary. Mr Moodie made and filed an affidavit in the proceedings. The plaintiff applied for orders in the alternative; first that Mr Moodie be prohibited from acting as counsel and, alternatively, his affidavit evidence be removed from the record and not be relied upon by the Court.

[59] What distinguishes Strachan from the present case is that in the former, Mr Moodie was not acting as counsel for the intervening shareholders. He was a trustee of the Moodie Family Trust which was the intervening shareholder. As a trustee he was a self represented litigant in his capacity as one of the trustees. This is plainly apparent from a glance at the intituling. The record of appearances below the intituling on the judgment records this fact whereas the legal representative for the plaintiff is recorded as counsel for the plaintiff.

[60] It is, however, by no means inevitable that where a lawyer’s advice or conduct may form part of the evidence or matters before the Court the lawyer is prevented from acting under r 13.5.3. The rule refers to “conduct or advice of the lawyer ... in issue ...”.

[61] In other words, the conduct or advice must be a material or relevant issue for consideration in the proceedings. This principle, at least in part, reflects the public

_{policy of professional propriety.}

¹² Strachan v Denbigh Property Limited HC Palmerston North CIV-2010-485-2540, 30 November

2010, Gendall AJ.

[62] In assessing whether the conduct or advice of the lawyer is in issue every case will require an assessment of how contentious or controversial the advice or conduct is in the wider context of the litigation.

[63] Harrison J undertook this exercise in Greenmount Manufacturing Limited v Southborne Investments Limited.¹³ There, the issue was whether the company solicitor acting in the litigation should be excused from compliance with r 13. The solicitor was to be called as a witness at trial. The issue for the Court was whether the evidence was contentious; the parties apparently accepting that if it was, the solicitor could not continue to act.

[64] Following a careful analysis of the facts, Harrison J concluded that the compass of the evidential dispute was extremely narrow and any differences between the solicitor’s evidence and others’ might ultimately prove irrelevant to the result. Given the purpose of r 13.5 is to ensure that lawyers do not place themselves in positions of conflict his Honour concluded the solicitor could continue to act and excused him from compliance with the rules.

[65] Plainly, that is not the position in the present case. Mr Keene’s conduct lies

at the heart of the respondents’ defence and counterclaim.

Rule 13.5.1

[66] Rule 13.5.1 applies to lawyers giving evidence in proceedings where they are acting.

[67] The rule applies only when the evidence to be given is of a contentious nature. Rule 13.5.1 states:

A lawyer must not act in a proceeding if the lawyer may be required to give evidence of a contentious nature (whether in person or by affidavit) in the matter.

¹³ Greenmount Manufacturing Limited v Southborne Investments Limited, above n 7.

[68] Again, the rule is mandatory in its language.

[69] It is common ground that Mr Keene’s evidence is highly contentious and is likely to be determinative depending on the Court’s findings of fact.

[70] It follows that r 13.5 also operates to prevent Mr Keene from acting in the proceedings.

Has the legal landscape changed since Chamberlains v Lai?

[71] Mr Jefferson submitted that now a barrister may be sued for acts or omissions undertaken in Court the legal landscape has changed. He submitted that a barrister sued personally for a negligent act or omission in the Courtroom, must, in response, be able to act for himself similar to a litigant in person.

[72] Tipping J in Atkinson v Pengelly observed that ruling a barrister can sue for their fees in New Zealand could have wider ramifications including the potential to undermine the general rule allowing barristerial immunity from suit for litigation.¹⁴

[73] I am not persuaded by the appellant’s argument that the legal landscape has changed since Chamberlains v Lai. The Supreme Court described the historical background to the inability of a barrister to sue for their own fees:¹⁵

[98] In medieval times, barristers, as we now know them, were liable for negligence and, so it seems, were able to take action to recover their fees. During the 16^th century there was a revival of interest in many facets of life in ancient Greece and Rome. Included in this renaissance was the study of Roman law. It was a well established tenet of Roman law that advocates had no contractual right to sue for their fees. In that respect they had no contract with their clients and what they received for their services was in the nature of an honorarium.

[99] The importation of this Roman law approach into the English common law resulted in the medieval view being overtaken by the view that as there was no contract between barrister and lay client, or between barrister and instructing solicitor for that matter, there was no basis for any action for breach of any duty to take care. Until the 20th century there was no recognised general cause of action for negligence, outside contract, in relation to services rendered by a professional person. The absence of any

¹⁴ _{Atkinson v Pengelly, above n 4, at 111.}

¹⁵ Chamberlains v Lai [2006] NZSC 70 at [98]- [99].

contractual basis for a claim against a barrister, and the corresponding inability of a barrister to sue for outstanding fees, was generally seen as the basis upon which barristers’ so-called immunity was based.

[74] However, as Mr Mills noted, neither subsequent cases nor amendments to the professional rules have indicated any softening of the principles discussed above, particularly in relation to rr 13.1 and 14.4.

[75] As a result, to allow Mr Keene to appear would cut across well established principles of law and the Rules. There are no greater policy reasons which warrant a decision contrary to these principles and rules.

[76] As with Mr Mills, I am not unsympathetic to the position of Mr Keene. I agree, however, that this is a risk inherent in the arrangement he made with Mr Cutting.

Section 57 of the District Courts Act 1947

[77] The appellant’s alternative argument is that the particular circumstances of this case justify the Court granting Mr Keene leave to appear as the plaintiff’s agent. In this role, he would present the plaintiff ’s case, cross-examine respondents, give evidence and make submissions. In other words, he would act as counsel and as a witness in the same cause.

[78] Section 57 provides as follows:

57 Right of audience

(1) A party to any proceedings may appear and act personally or by a barrister or solicitor of the High Court, and not otherwise:

provided that under special circumstances the court may permit any party to appear by an agent authorised in writing by the party himself, if in New Zealand, or, if absent therefrom, by any person holding a power of attorney from the party authorising such person to sue and be sued for and in the name of the party; but any agent, unless he is a barrister or solicitor, shall not be entitled to receive any fee or reward for so appearing or acting.

(2) A corporation may appear by any officer, attorney, or agent of the corporation.

[79] The history of s 57 is obscure. Its predecessor in the form of the Magistrate’s Courts Act 1928 is expressed in nearly identical terms.¹⁶ There is no High Court equivalent to s 57. Mr Jefferson submitted that the section probably reflects the status of the District Court as the “people’s Court” and the section is likely designed, where special circumstances are found to exist, to extend the classes of those permitted to represent parties in that jurisdiction beyond the ranks of barristers and

solicitors.

[80] Mr Mills suggested the purpose of s 57 is to create a right to appear on behalf of another person who was unable to be present in Court or otherwise incapable of presenting his or her case.

[81] Whatever the correct position is, I am not satisfied s 57 assists the appellant in this particular case.

[82] The qualifying words in s 57 are “special circumstances”. Unless the appellant can identify special circumstances, the default position must be that Mr Cutting may appear and act personally or by a barrister or solicitor of the High Court.

[83] Mr Jefferson contrasted the adjective “special” with other familiar expressions known in the law such as “extraordinary” or “exceptional”. He submitted that the threshold for finding “special circumstances” was considerably lower. He helpfully referred me to the comments of the Court of Appeal in Cortez Investments v Olphert & Collins where the expression “special circumstances” was

considered in the context of s 151 of the Law Practitioners Act 1982.¹⁷ The

limitations on resorting to other statutory contexts to interpret meaning was noted by

McMullin J: ¹⁸

What are ‘special circumstances’ must be considered against the statutory background in which they are used. These words have been considered in a number of cases decided under a variety of statutes. But, apart from observations of general principle, decisions under one statute are not likely to be of much relevance to another. This is one reason why this appeal does

¹⁶ _{Section 67.}

¹⁷ _{Cortez Investments v Olphert & Collins [1984] 2 NZLR 434 (CA).}

¹⁸ At 441.

not call for a declaration as to what situations are encompassed by the words. Another is that because circumstances are special to each case, a judgment on whether or not they assist will often be a value judgment on the facts, and not one of general application. It would be as unwise as it would be impossible to endeavour to identify the situations and circumstances which may be held to be special under this or any other statutory provision, and indeed where circumstances have common characteristics such as a solicitor’s mistake, what are special in one case may not be special in another. All that can be said is that the special circumstances must be abnormal, uncommon or out of the ordinary.

[84] Mr Jefferson submitted that either individually or collectively, the following circumstances would meet the test of “special circumstances” justifying the grant of leave under s 57:

(a) the plaintiff, Mr Cutting, has no interest in the proceedings and is

merely facilitating the recovery of the barrister’s fee;

(b) Mr Keene is the only person whose interests are engaged by the appellant’s claims. He should be permitted to conduct the litigation as though he were a litigant in person;

(c) there is no prejudice to the respondents;

(d) the respondents are aware Mr Keene is funding the litigation and is the person responsible for the fees of the instructing solicitor. As a consequence, the respondents are improperly capitalising on Mr Keene’s vulnerability by adopting a cynical strategy to unnecessary complicate and prolong the proceedings for the purpose of making the proceedings uneconomical for Mr Keene to continue to act.

[85] Mr Mills, in response, submitted there were no “special circumstances” engaged in the present case and nothing to indicate that Mr Cutting is unable to present his own case for the recovery of the fee owed to Mr Keene.

[86] In my view, whether assessed individually or collectively, the circumstances of this case are not abnormal, uncommon or out of the ordinary. While the position Mr Keene finds himself is invidious and it is difficult not to feel some sympathy for him, the circumstances cannot be said to be special or out of the ordinary such that this Court should permit him to appear as Mr Cutting’s agent.

[87] There is no apparent reason why Mr Cutting himself cannot appear and act personally.

[88] As was fairly and candidly accepted by Mr Jefferson, the purpose of having Mr Keene appear as Mr Cutting’s agent is because it is uneconomic to instruct alternative counsel. In my view such a consequence cannot be what s 57 is directed at achieving.

[89] Furthermore, although arguably a counsel of perfection, Mr Keene could have protected his financial vulnerability in a variety of ways which barristers sole routinely adopt. For whatever reason, he elected not to.

[90] The consequences of that election should not now permit him to adopt a role which would have the effect of contravening the rule expressed in Atkinson v Pengelly.

[91] It follows that I am not prepared to permit Mr Keene to appear as

Mr Cutting’s agent in terms of s 57.

Result

[92] The appeal is dismissed.

_{[93] Given that the respondents are self represented, I make no order as to costs.}

Moore J

Solicitors:

S Jefferson, QC, Auckland

S Mills QC, Auckland

Copy to:

Y Liu, K Lau and D Qui, Auckland