An incarcerated plaintiff in a judicial review application had a significantly reduced costs order made against him in recognition of the chilling effect that costs orders have on potential plaintiffs bringing New Zealand Bill of Rights Act cases.
Lance Lee, an inmate at Rolleston Prison, applied for judicial review of the Department of Corrections (“Corrections”) decisions to decline medical prescriptions, and a prison policy of charging for hearing aid batteries. He alleged the decisions breached his rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”). This included his right not to be subject to torture or cruel treatment, right to freedom from discrimination, and right to be treated with humanity and respect while being deprived of liberty.
The application for judicial review failed decisively, and Corrections sought an award of costs from Mr Lee to reimburse them for their expenses incurred instructing a barrister to defend the application (which amounted to $11,648). Mr Lee requested that costs be either reduced or refused entirely.
Costs are awarded at the discretion of the Court in accordance with the High Court Rules. The standard position is that an unsuccessful party will pay costs to the successful party, though the Court may refuse to award costs or reduce them. Circumstances where the Court may exercise this discretion include when a proceeding concerned a matter of public interest, or where the party claiming costs had contributed unnecessarily to the time or expense of a proceeding.
Mr Lee opposed costs on the grounds that the proceeding concerned a matter of public interest. For a reduction of costs on those grounds, it required the proceedings to genuinely engage the public interest, have merit, and be of importance beyond the interests of the unsuccessful party. Just because a case invokes human rights does not necessarily mean it concerns a matter of public interest.
Mr Lee submitted that a costs order would be contrary to his right to justice as affirmed by section 27 of NZBORA and would discourage other inmates from initiating legal proceedings to uphold their own rights. He argued that the Court had agreed his claim had merit as they had refused to strike it out and relied on Gorgus v Chief Executive of the Department of Corrections, where a prisoner successfully appealed a costs order for an unsuccessful NZBORA claim.
Corrections submitted that they acted appropriately throughout the proceedings, including signalling the prospects of costs to Mr Lee. They submitted Mr Lee’s claims were for his personal benefit, were without merit, and had already incurred public costs from Corrections staff having to take time to provide affidavit evidence.
The court considered that the judicial review had little public benefit. The medical decisions were non-justiciable and personal to his circumstances, so did not have the potential to benefit other inmates. The prison policy to charge for hearing aid batteries considered the personal circumstances of prisoners, which the Court said limited the benefit Mr Lee’s review would have for other prisoners.
Citing Gorgus, the Court nonetheless noted the chilling effect that the risk of costs orders has on potential plaintiffs. The Court recognised the policy interest in not discouraging litigants with tenable grounds of review from accessing the courts to vindicate their rights. This interest is balanced against not wanting to immunise litigants with meritless claims from adverse costs awards.
The Court noted that Mr Lee’s status as a prisoner and lack of access to substantial funds were not a barrier to an award of costs, but they did make Mr Lee the kind of person whose access to justice needed to be preserved and recognised. The Court considered it appropriate to substantially reduce the costs Mr Lee would pay to Corrections.
The Court ordered Mr Lee to pay $1000 to Corrections for costs incurred defending his application for judicial review. This was a significant reduction from a standard costs order.
For further information on this case or similar issues, please contact Managing Director Brigitte Morten
