A short rant of incoherent thoughts on the Taylor costs decision

There are few things lawyers like more than saying “well, there’s a very good policy reason for the outcome”.

So it is that there is a very good policy reason for limitation periods for civil claims, meaning that Mariya Taylor’s civil claim against Robert Roper and the New Zealand Defence Force was time-barred.

So it is that there is a very good policy reason for barring personal injury claims in New Zealand meaning that Ms Taylor could not claim compensatory damages.

And so it is with costs, the most recent decision, where there is a very good policy reason why costs should not be the way that a plaintiff defeated in battle can win the war.

The difficulty with the line, though, is that when one has to deploy it so often that it becomes a mantra or a football chant it loses its persuasive power.  The sock of justice is exposed as mainly darn.  And while it still functions as a sock it is one that no one much wants to wear.

I agree with Edwards J’s costs decision in the Taylor v Roper case.  I like to think I would have ruled the same way and then coped with the self-loathing that followed.  Legislated costs schemes and appellate rulings are spiderwebs that catch first-instance judges.  In addition, the 50% reduction in costs that Edwards J ordered was, I think, extremely high, and an instance of a judge doing all that she could within the boundaries set by others.

But fuck me if it’s still not a shitty outcome.

I put my faith in very good policy reasons.  I put my faith in High Court judges.  And I put my faith in not letting the emotion of the moment lead us into unprincipled outcomes against persons who are rightly disliked.  Tough outcomes like this make me think we need to find some different very good policy reasons though.  As was almost said in A Man For All Seasons: it profits a man nothing to give his soul for the whole world … but for Part 14 of the High Court Rules?

And on days like this, where very good policy reasons carry the day, perhaps it is consolation to remember the words of Sir Clinton Roper who for years sat in the High Court at Christchurch: “Bugger the law.  Let’s have a bit of justice.”

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