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High Court of New Zealand Decisions |
Last Updated: 7 December 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2013-409-1333 [2016] NZHC 2619
BETWEEN
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DEREK RICKY BLIGH
Plaintiff
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AND
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THE EARTHQUAKE COMMISSION First Defendant
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AND
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IAG NEW ZEALAND LIMITED Second Defendant
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Hearing:
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31 October 2016
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Appearances:
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A J D Ferguson and J S Morriss for Plaintiff
N S Wood and J W Upson for First Defendant
P M Smith and S J Connolly for Second Defendant
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Judgment:
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2 November 2016
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JUDGMENT OF CLARK J
[1] Mr Bligh sues the first and second defendants for earthquake damage to his home at 27-29 Waddington Road, Christchurch. The matter has been set down for trial since December 2015 when a seven-day fixture commencing Monday
31 October 2016 was allocated.
[2] In accordance with a pre-trial direction given by Davidson J on 10
October
2016 I met with all counsel at Mr Bligh’s home at 8:30am on 31 October
2016 for the purpose of a site visit. When I arrived
counsel were engaged in
settlement discussions.
[3] On returning to the court following the site visit I was advised that plaintiff’s counsel wished to address me in chambers concerning a recent development. The matter was called shortly before 11:30am and Mr Ferguson advised that the
plaintiff’s litigation funder had terminated his agreement with Mr
Bligh on the basis
BLIGH v THE EARTHQUAKE COMMISSION [2016] NZHC 2619 [2 November 2016]
of Mr Bligh’s “non-cooperation”. Consequently Mr Bligh has
no ability to pay his legal advisers and in the absence
of any agreement about
payment Mr Ferguson sought leave to withdraw.
[4] In response to my concern and queries about Mr Bligh, Mr
Ferguson confirmed he had advised Mr Bligh:
(a) that he, Mr Ferguson, would be making an application to the Court
for leave to withdraw;
(b) that Mr Bligh should be in attendance;
(c) that Mr Bligh had been advised of the consequences of the
withdrawal of funding; and
(d) in response to Mr Bligh saying he wished to arrange legal aid, that
it was unlikely he could do that in the time available
before the hearing was
due to commence and that Mr Bligh should come and speak to the Court about it
but it appeared he had chosen
not to do so.
[5] My further exchanges with Mr Ferguson were to satisfy myself
that the application to withdraw was not attributable
to a breakdown in the
relationship which might be reparable.
[6] I viewed as inevitable the grant of Mr Ferguson’s application
for leave to withdraw there being no basis upon which
Mr Ferguson could be
required to commit to completion of a seven-day trial1 spread
over a fortnight.2 Before formally granting the application I
heard from Mr Wood and Mr Smith, counsel for the first and second
defendants.
[7] Counsel had only become aware of the withdrawal of funding
and of
Mr Ferguson’s intended application to withdraw at 11:00am.
In circumstances
1 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 4.2.1.
where Mr Bligh had not even
turned up, notwithstanding that he had been advised by his counsel to do so,
counsel sought judgment dismissing
the proceeding. There had been significant
wasted costs and serious inconvenience and expense for witnesses including
experts.
[8] Mr Ferguson, albeit acknowledging his dubious standing to do so,
urged the Court to consider that in not attending Mr Bligh
was not being
disrespectful. He may have been attempting to arrange legal aid. I
draw no inferences from Mr Bligh’s
conduct. I have little basis for
doing so and I bear in mind that he is very ill.
[9] The defendants, however, are entitled to certainty about what is to
happen next. Rule 10.8 covers this very situation
and its terms are plain.
If a defendant appears but the plaintiff does not the defendant “is
entitled to judgment”
dismissing the proceeding. On the basis of Mr
Ferguson’s advice to the Court I am satisfied there has been no
misunderstanding
on the part of the plaintiff. Mr Ferguson assured the Court
that Mr Bligh had been fully informed and advised. I propose to dismiss
the
proceeding.
[10] The reservations I initially held about taking this step are
ameliorated by the fact that r 10.9 permits the Court to set
aside or vary the
dismissal of a proceeding if there has been, or may have been, a miscarriage of
justice. Thus, Mr Bligh is free
to make an application to have this judgment
set aside if he is able to demonstrate that grounds exist.
[11] That a seven-day fixture can be so disrupted by a funding arrangement unknown to the parties or the Court is concerning. There are obvious repercussions for a plaintiff but there are also implications for the management and allocation of limited judicial resources. In Waterhouse v Contractors Bonding Ltd3 the Supreme Court considered the existence of a litigation funder and the funder’s identity should be disclosed to the other party, or parties, when litigation is commenced as should the location of the funder and its amenability to the jurisdiction of the New Zealand courts. The non-funded party is entitled to know of the existence of a litigation
funder before the party can decide, for example, whether to make an
application for security for costs and an application for costs.
So too is the
Court entitled to know.
[68] In addition, as a matter of principle, we consider that the courts
(and the other party or parties) are entitled to know
the identity of the
“real parties” to the litigation.
[12] In light of the potential vulnerability of litigation funders to
third party costs awards4 litigation funders may consider it prudent
to ensure that their involvement is brought to the attention of parties and the
courts.
[13] In the course of finalising this judgment I received a memorandum
filed on behalf of the plaintiff. Mr Bligh has instructed
a new solicitor,
Grant Cameron of GCA Lawyers. The thrust of the memorandum, signed by
Mr Lynn of GCA Lawyers, is to
seek an adjournment of the proceeding and also
an urgent fixture given the plaintiff’s serious ill health. He is
suffering
from terminal cancer. Mr Lynn advises that it is not possible to
inform the Court at this stage when the plaintiff may be in
a position to
reconvene the hearing. A case management conference is
requested.
[14] Mr Lynn’s memorandum proceeds on the basis of instructions
from Mr Bligh including an explanation as to why he was
not in Court when
counsel sought leave to withdraw. Because it is an important point, and the
explanation is at odds with the explanation
given by Mr Ferguson, I set out the
relevant paragraph of Mr Lynn’s memorandum which was emailed to the
registry on the evening
of 31 October.
In the time available the Plaintiff has briefly explained:
The Plaintiff was not in Court when this [withdrawal of counsel] occurred. He
had been lead to believe through his Counsel that he
should remain at the
property to which these proceedings relate to meet an engineer. This appears to
have been a result of a
break down in communications between the
Plaintiff and Counsel and no disrespect to the Court was intended.
[15] Mr Ferguson has responded to correct one factual aspect of the memorandum. As it is the correction of a key fact I set out Mr Ferguson’s response in full.
On 31 October 2016 counsel for the plaintiff advised the plaintiff that he
had to attend the Court for the hearing. He was specifically
advised not to
wait to meet with the engineer who was looking at the property that
morning.
After counsel for the plaintiff was informed that the funder had cancelled
its contract with the plaintiff, counsel told the plaintiff
again not to wait
for the engineer but go to the Court for the hearing.
[16] I accept Mr Ferguson’s account, as I did when he provided it.
I accept also that Mr Bligh meant no disrespect to the
Court but the fact
remains he failed to appear. And the decision not to appear was made in the face
of his counsel’s advice.
[17] It seems to me that an attempt is now made by Mr Bligh
to offer an explanation for his non-appearance which
suggests a
misunderstanding of the type which sometimes leads a court to stand a matter
down while inquiries are made and to adjourn
the trial.
[18] A joint memorandum from counsel for the defendants records the
defendants’
continued opposition to adjournment.
[19] I do not consider an adjournment of the trial is
warranted in the circumstances of this case. A court faced
with an
application for adjournment must take account of the interests of other
litigants as well as the public interest
in achieving the most efficient
use of court resources. The proceeding has been afoot since 2013. The
defendants are entitled
to certainty and to judgment under r 10.8. Any
miscarriage of justice thought to arise from that course may be addressed by an
application
to set this judgment aside.
Result
[20] The following orders are made:
(a) Mr Ferguson is given leave to withdraw.
(b) The defendants are entitled to judgment pursuant to
r 10.8.
Accordingly, the proceeding is dismissed.
(c) Costs are reserved. The parties may submit
memoranda.
Karen Clark J
Solicitors:
Grant Shand, Christchurch for Plaintiff
Chapman Tripp, Wellington for First Defendant
Duncan Cotterill, Auckland for Second Defendant
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