This article was originally published as an opinion piece on Radio New Zealand News as Rules v justice: Trial outcome shows law change needed (23 January 2019).
Reading the judgment in Taylor v Roper is likely to leave a lingering sense of injustice for all but the strictest believers that the rules are the rules.
Ms Taylor had successfully established that Mr Roper had sexually harassed and abused her when she was working for the Royal New Zealand Air Force some 30 years ago. He was a sergeant and her superior; she was a “very shy, quiet and naïve” young woman, aged between 18 and 21.
The trial judge found that Mr Roper’s conduct was a “material and substantial” cause of Ms Taylor’s post-traumatic stress disorder. But despite winning that battle, she lost the war; her case failed on the grounds that our ACC scheme and the Limitations Act barred bringing a civil claim against him at this time.
Both Mr Roper and Ms Taylor would have been left with significant legal bills at the end of this seven-day, multi-witness trial. We don’t know what Ms Taylor’s bills amounted to but it’s likely they were in the same region as Mr Roper’s, which were $100,231.21.
As the legally successful party (the case against him having failed), Mr Roper was entitled to claim about half of those litigation costs from Ms Taylor. Ms Taylor would have known this was a possibility should she lose, as the claimable amount is calculated using a schedule. The idea is that litigants will carefully weigh their prospects of success and the potential costs before heading to court, fully informed of the amounts involved.
However, there still is some discretion left to the judge when making a costs award. Justice Edwards exercised this generously, discounting the amount claimed by 50 percent to recognise that the trial was made longer and more expensive by Mr Roper’s failure to own up to his wrongdoing.
Justice Edwards did not refuse costs altogether though, stating that to do so would undermine the point of the costs’ rules. These include compensating (but not rewarding) the winner for having to go to court, and discouraging litigation that has no real chance of success. The upshot is the unpalatable but probably legally correct-result that Ms Taylor must pay her likely abuser $27,819.25.
Following the decision, Ms Taylor’s lawyer has commented that it will “have a chilling effect on victims who are considering [using the civil system to seek justice]”. She is probably correct about this.
However, that chilling effect is part of our current justice system’s design. While trying to avoid discouraging people with strong cases coming to court, the costs regime deliberately “encourages litigants to consider whether there are cost-effective alternatives to court litigation to resolve the underlying dispute”.
We then need to ask what alternatives Ms Taylor had. The path chosen by many would-be complainants faced with the prospect of a long, difficult, and expensive fight, is to do nothing. That is not ideal for us as a society, where such choices mean wrongdoing does not come to light.
Others complain to police (and Ms Taylor did this but then withdrew the complaint). But it is depressingly well-known that the chances of prosecution are low if sexual offences are historical.
Why not then offer the civil system as the alternative? While the court documents might suggest that complainants are just after money, litigants are often pursuing other goals in court: Publicly airing wrongs committed in private; vindication; a desire to protect others from the same treatment; and institutional change.
Where these goals are genuinely at play, perhaps we should allow the litigants to run the risk of losing and face only the prospect of meeting only their own costs, not the opposing party’s as well. Genuinely unworthy litigation will still be discouraged by the fact the unsuccessful litigant will have to meet their own costs.
Such an exception to the usual rules on costs would hardly be an open invitation for litigation. The court could still retain a discretion as to when it would apply costs’ rules, but allowing people to use the law and lose without having to pay the victor might be better for our society.