Costs in civil cases - a justice system failing for Mariya Taylor

There is a real sense of outrage at the costs decision against Mariya Taylor in her case against Robert Roper, who was found to have sexually assaulted her when she was an air force service woman. That outrage is quite understandable, and the fact that donations to a givalittle page are growing indicates the depth of feeling.

An array of rules - which are each reasonable when taken alone - led to this result. To understand how this happened it is important to start with the original decision, where the claim for compensation for assault and false imprisonment was refused by the High Court. Importantly, three key things were found established by the Court.

First, the key allegations of sexual assault and false imprisonment were proved; second, Mariya was found to be suffering from diagnosable mental harm; and third, that harm was found to have been substantially and directly caused by the wrongdoing. So how did she lose?

In fact, the claim failed for two reasons. The most high profile reason was that it was out of time. The Limitation Act 1950 required that legal claims be brought within set time periods (it has since been updated by the Limitation Act 2010 but the rules are much the same here).

The basic rule is that a claim must be brought within six years of the date when it first could have been made. The assaults here occurred in the mid-1980s and Mariya left the Defence Force in 1988 – so a claim could have been made then. It was not in fact made until 2016, some 28 years later. 

The limitation rule makes sense. People should be expected to bring claims within a reasonable length of time both to ensure that the evidence is available and fresh, and also so that people can have a degree of certainty around whether they will be sued for something or not. However the limitation rule is also brutally cut and dried in some instances. Sexual assault cases can raise particular problems as the very fact of the offence can make it unrealistic to expect a claim to be made.

It is for that reason that an extension of the limitation period exists under s 24 for people who suffer under a disability which prevents them from bringing their claim. So in this case for Mariya to succeed she had to show that she was unable to bring her claim until she did as a result of some disability. There certainly have been cases where post-traumatic stress syndrome has been found to be such a disability. However in this case the judge carefully looked at the evidence and found that there was no barrier which met the standard of a medical disability preventing the claim being made in a timely way.

An important second reason that the claim failed (which has not been mentioned in the media reports on the issue) is that the wrong doing amounted to a personal accident under the Accident Compensation framework. A key part of that framework is the prohibition on suing third parties for any injury that qualifies for compensation. As a result the claim was also barred under s 317 of the Accident Compensation Act 2001.

So the claim was both out of time, and statute barred by the ACC system. Mariya had sued Roper and lost. There is a strong presumption that when a party wins in court the other side pays a contribution to their costs (it is often around a half to two thirds of what it actually costs). A further important principle is that while the amount of costs can take into account the way the case was run (for example if the other party was especially obstructive or delayed unduly) a costs order does not take into account the conduct of the parties in the dispute itself.

So even though Roper was proven to have sexually assaulted Mariya that did not figure in the judge’s reasons in the costs award. It is the job of the substantive case to determine whether the law should compensate for that; costs flow from that result. 

There is, however, a final sting in the tail. Roper received legal aid for at least some of his legal fees. Because this was a civil rather than criminal case legal aid is a loan rather than a grant and must be paid back. In particular under s 21 of the Legal Services Act 2011 the grant must be repaid from any “proceeds of the proceedings” which includes any costs award. The result is that the costs which must be paid by Mariya will ultimately find their way into the bank account of the Ministry of Justice.

So what are the lessons here? Probably that a critical failing in our civil justice system is the costs framework. The fact that ordinary citizens are expected to pay more than the average annual salary to bring a claim in court of itself means real justice is not accessible to most. And this case shows that the costs rules formulated by the courts themselves need a thorough examination. 

The principle that the loser should pay something is fine, however there are many instances where it should be displaced but isn’t. This case is one example – where the claim was justifiably brought and the defendant’s conduct is so morally outrageous as to deprive them of the benefit of costs. Other cases might include cases where a citizen has sued because the law is unclear – they may have lost but the law is clarified for others. Consideration might also be given to consumer cases where large businesses have a natural advantage, and adverse costs awards are a real barrier to ordinary New Zealanders getting justice – insurance is the prime example.