Jehanne Jackman v Peter Clague [2016] NZDC 3266

Published 11 July 2016

Indemnity costs — Costs in Criminal Cases Act 1967, ss 5, 7, 13 — application for costs — whether costs above scale — bad faith prosecution. Following the dismissal of charges (male assaults female) against him the defendant applied for full indemnity costs. These were awarded in the sum of $145,811.37 pursuant to the Costs in Criminal Cases Act 1967 (the CCA). The Judge found that costs in excess of scale were justified in the circumstances given the issues the defendant was required to deal with. Full indemnity costs were deemed appropriate given the extensive work required and extreme degree of bad faith. Section 13 of the CCA provides for the making of regulations providing maximum scales of costs. The defence counsel submitted Court has a very wide discretion to award costs to a successful defendant. Further, s 7(2) of that Act recognises the need for deterrent by way of costs when there is bad faith in the conduct of criminal proceedings. Defence submitted that the defendant could never be adequately compensated for the damage caused to his reputation or the embarrassment and suffering inflicted on him and his family, but he should be compensated for his direct financial losses in defending the charges. Ms Dyhrberg for the informant conceded that given the Court’s findings, an award of costs in excess of scale was likely. She submitted that full indemnity costs were not justified on the basis that there was evidence (medical and by way of the defendant’s admissions) to support the charges brought and that the quantum of costs sought was grossly excessive for a prosecution involving a single allegation of male assaults female. The Judge stated that while on the face of it a claim for full indemnity costs would appear to be out of all proportion to the length of trial and nature of the charge, given the level of preparation required by the defendant found that it was not. The Judge found that the informant’s claims were grossly and maliciously exaggerated in order to destroy the defendant’s reputation, to inflict damage on the Kristin School and to obtain the advantage in the informant’s relationship property claim. The various media campaigns relating to the case where found to be an extraordinarily aggravating feature and the Judge found it "difficult to imagine a worse case of bad faith".