Lyttelton v Davison [2017] NZHC 1716 (24 July 2017)

	Home \| Databases \| WorldLII \| Search \| Feedback High Court of New Zealand Decisions

BETWEEN	MARTIN VICTOR LYTTELTON Plaintiff
AND	PAUL JOSEPH DAVISON QC First Defendant
AND	MINTER ELLISON RUDD WATTS Second Defendant
AND	AARON LLOYD Third Defendant
AND	CATHY QUINN Fourth Defendant

Hearing:	19-20 June 2017
Appearances:	Plaintiff in person P Rzepecky and A Colgan for the First Defendant S Grieve QC and M Harris for the Second, Third and Fourth Defendants
_Judgment:	_{24 July 2017}

[1] On 8 April 2008, the plaintiff, Mr Lyttelton, drove to the residence of his former business partner, Mr Ord, armed with a knife, shotgun and cartridges. He fired the shotgun through the door, severely injuring Mr Ord’s partner who was holding the door on the other side trying to prevent his entry. In an ensuing struggle with Mr Ord, Mr Lyttelton fired a second shot and attempted to stab Mr Ord in the stomach area on three or four occasions. Mr Ord suffered a number of cuts to his

[2] Mr Lyttelton was subsequently arrested and charged with two counts of attempted murder and one of aggravated burglary. He engaged the second defendant, Minter Ellison, as solicitors. The third defendant, Mr Lloyd, was a solicitor with the firm who assisted in Mr Lyttelton’s defence. The fourth defendant, Ms Quinn, was a partner of Minter Ellison. They instructed the first defendant, Mr Davison QC, as counsel.

[3] On 12 November 2009, Mr Lyttelton pleaded guilty to one count of attempted murder, one of causing grievous bodily harm with intent to injure and one of aggravated burglary. On 31 March 2010, he was sentenced to five years and 11 months’ imprisonment. He was released on parole on 2 May 2011.

[4] In December 2012, Mr Lyttelton filed an appeal against his convictions. That appeal was heard in November 2014. On 19 December 2014, the Court of Appeal quashed his convictions on the basis Mr Lyttelton had pleaded guilty “under a self- induced mistake of law”, that he could deny having the necessary criminal intent, through a disputed facts hearing. A retrial was ordered.

[5] Mr Lyttelton was retried on the charges to which he had originally pleaded guilty. He was found guilty on all charges by a jury and convicted on 17 March

[9] The strike out applications were argued before me on 19 and 20 June 2017. [10] Mr Lyttelton represented himself in these proceedings. He was his own

advocate before the Court of Appeal and in judicial review proceedings before Katz J

and at his retrial. In the Court of Appeal, he gave his occupation as legal advocate.

It was apparent, from his submissions to me, that he has been able to access case law, which he considered relevant, and was conversant with the High Court Rules and the discussion of them in McGechan on Procedure.¹

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike-out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed; the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material; but the fact that applications to strike-out raise difficult questions of law and require extensive argument does not exclude jurisdiction.

²_{Attorney-General v Prince and Gardner [1998] 1 NZLR
262 at 266 (CA) (citations omitted).}

³Couch v Attorney-General [2008] NZSC 45; [2008] 3 NZLR 725 (SC) at [33] per Elias CJ and Anderson J.

[14] Where a defendant claims that the cause of action is time-barred, the Court will consider whether the claim is frivolous, vexatious or an abuse of process if it is allowed to continue. In Murray v Morel & Co Ltd, Tipping J said:⁴

I consider the proper approach, based essentially on Matai, is that in order to succeed in striking out a cause of action as statute-barred, the defendant must satisfy the Court that the plaintiff’s cause of action is so clearly statute- barred that the plaintiff’s claim can properly be regarded as frivolous, vexatious or an abuse of process. If the defendant demonstrates that the plaintiff’s proceeding was commenced after the period allowed for the particular cause of action by the Limitation Act, the defendant will be entitled to an order striking out that cause of action unless the plaintiff shows that there is an arguable case for an extension or postponement which would bring the claim back within time.

[15] As to applications based on a claimed abuse of process, in Air National Corporate Ltd v Aiveo Holdings Ltd, the High Court adopted the following principles from the Australian High Court’s judgment in Williams v Spautz: ⁵

(a) In general, the Courts should exercise their jurisdiction on matters properly brought before them.

(c) The Courts need to be vigilant that abuse of process claims are not advanced other than in clear and appropriate cases, and are not brought for tactical reasons.

(d) Equally fundamentally, however, the Court should be alert to misuse of its processes, and be prepared to exercise its power to stay where the interests of justice demand it.

The concern is with conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law. As it was put by Frankfurter J in Sherman v United States 356 US

369, 380 (1958): “Public confidence in the fair and honourable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake”.

[17] In Hunter v Chief Constable of West Midlands, there had been criminal proceedings in which the plaintiff and others (the Birmingham Bombers) claimed

⁵Air National Corporate Ltd v Aiveo Holdings Ltd [2012] NZHC 602 at [31], citing Williams v

confessions, as to their involvement in bomb explosions in Birmingham, had been obtained through their being beaten up by the Police so that their confessions should be ruled inadmissible.⁷After a lengthy trial within a trial, the Judge accepted the evidence of the Police officers denying the allegations and ruled the confessions were admissible. The accused were found guilty. The Police officers were later charged with assaulting the accused but were acquitted. Subsequently, the plaintiff and others brought a civil claim against the Police claiming damages for assault.

... the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

[19] The House of Lords upheld judgments of the Court of Appeal striking out the proceedings. They did so on the basis the case exemplified abuse of process through:⁹

... the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

[20] Lord Diplock said the principle applicable was clearly stated in two passages which he cited from Stephenson v Garnett and Rachel v McGrath:

“... the Court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn [sic] that the identical question sought to be raised has been already decided by a competent court.”¹⁰

“... I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.”¹¹

⁷_{Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1982] AC
529, [1981] 3 WLR 906.}

[22] In Gregoriadis v Commissioner of Inland Revenue, Richardson J, for himself and Sir Clifford Richmond, said:¹³

It is fundamental to the judicial process that there be an end to ligitation. Over recent years there has been considerable discussion in the cases and in legal periodicals in various jurisdictions concerning the responsibility resting on the Courts to prevent the relitigating of issues already decided and the precise scope and application of concepts such as res judicata, issue estoppel, double jeopardy, the specific pleas of autrefois acquit and autrefois convict, and abuse of process.

In their judgment, they dealt with the issue before them as an estoppel per rem judicatum.

I am satisfied it would not be right to permit the Commissioner to seek to establish in proceedings in the High Court that the appellant wilfully made false returns of income when another Court has already finally determined that issue against him. Whether that be described as issue estoppel or the application of public policy in respect of an abuse of process may not be important. The aim in each case is finality of litigation and fair use of curial procedures.

[24] In New Zealand Social Credit Political League v O’Brien, Somers J in the

Estoppel per rem judicatam, issue estoppel, and abuse of process in at least one of its manifestations, may be seen as exemplifying similar concepts – that a matter once determined may not be again litigated, that a matter which could and should have been raised in proceedings which have been determined should not be allowed to be raised subsequently, and that a collateral attack upon a final decision in other proceedings will not be permitted. The dual objects are finality of litigation and fair use of curial procedures.

¹⁵_{New Zealand Social Credit Political League Inc v
O’Brien [1984] 1 NZLR 84 (CA) at 95.}

An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing-field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.

That is an appropriate concern for New Zealand courts when considering applications under rule 15.1 to strike out a pleading as an abuse of process.

[26] The Court is entitled to receive affidavit evidence on a striking out application and will do so in a proper case. It will not attempt to resolve genuinely disputed issues of fact and therefore will generally limit evidence to that which is undisputed. Normally it will not consider evidence inconsistent with the pleading, for a striking out application is dealt with on the footing that the pleaded facts can be proved “... but there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to

[27] On this application, the only affidavit filed in support of or in opposition to the application has been an affidavit from Stacey Shortall, a partner of Minter Ellison. With it was a schedule summarising the invoices rendered to Mr Lyttelton, in respect of the criminal proceedings on which they had been engaged as solicitors and the payments received on those invoices. Also attached to that affidavit was the judgment of the Court of Appeal quashing Mr Lyttelton’s convictions following his earlier guilty pleas, a judgment of Katz J in judicial review proceedings and Mr Lyttelton’s statement of claim in those judicial review proceedings. Counsel for the defendants’ have told me that, recognising the basis on which a strike out application must be considered, no further affidavits have been filed in support of the strike out application or to dispute allegations made by Mr Lyttelton.

[28] In a minute of 22 July 2016, Heath J directed Mr Lyttelton to file and serve notices of opposition by 8 August 2016 together with a memorandum identifying the

_{nature of the evidence on which he wished to rely, including references
to materials}

¹⁷Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566 (citations omitted).

available to the Court of Appeal on the criminal appeal. Mr Lyttelton subsequently filed a memorandum indicating he was relying only on the Court of Appeal’s judgment. However, he subsequently filed with his submissions the extensive written submissions he made to the Court of Appeal and an affidavit which he filed in support of his appeal (the Court of Appeal affidavit). In those latter documents, there are numerous criticisms of counsel. It is apparent from the Court of Appeal judgment that Mr Davison strongly denied and answered those criticisms. I have had regard to Mr Lyttelton’s affidavit and his submissions to the Court of Appeal as an undisputed record of the allegations made to the Court of Appeal to identify the issues which were dealt with by the Court of Appeal and as a record of what Mr Lyttelton has said previously as to allegations that have been made in his statement of claim.

[29] Through the bundle of authorities, I have the sentencing notes of Wylie J when Mr Lyttelton was sentenced on 31 March 2010 following his initial guilty pleas. I also have the sentencing notes of Asher J when Mr Lyttelton was sentenced following guilty verdicts on 18 May 2016. I have also had regard to Wylie J’s ruling of 12 November 2009 where he found Mr Lyttelton was fit to plead.

[30] I accept the submission of Mr Rzepecky that Mr Lyttelton’s statement of claim is not set out in the manner required by the High Court Rules in that it does not clearly identify the causes of action with clear and full particulars to support each separate cause of action. It is not clear what relief Mr Lyttelton is seeking in respect

of each cause of action.¹⁸I also accept that the statement of claim does not clearly

set out the essential allegations of fact which Mr Lyttelton relies on to support potential causes of action. The pleadings are also defective in including extensive reference to legal principles and include considerable and unnecessary repetition.

[31] Mr Lyttelton, in his submissions, accepted a number of these criticisms but submitted the defendants should file statements of defence and seek further

_{particulars. He acknowledged he should have set out separately the
relief he sought}

in respect of each cause of action but submitted that he should have the opportunity to file an amended statement of claim to remedy that defect.

[32] The form of the statement of claim has made it difficult for the defendants to identify the precise causes of action which Mr Lyttelton is relying on in making his claim. Counsel have, however, endeavoured to identify the potential causes of action which Mr Lyttelton is seeking to rely on. In his submissions, Mr Lyttelton did not disagree with their analysis. I thus deal with those potential causes of action.

... damages from Mr Davison QC, Ms Cathy Quinn and [Minter Ellison] for their having acted with malice and for their having defamed Mr Lyttelton and his conduct in their communications with each other and with NZ Police and the Department of Corrections in 2012.

[34] The only reference to the statements Mr Lyttelton appears to be relying on as a basis for a claim for defamation, is in the statement of claim under the heading:

27. Both Mr Davison QC and Ms Quinn of MERW had actively breached their duty of confidentiality to Mr Lyttelton, by their actions in 2012 in communicating with NZ Police and the Department of Corrections in regards to Mr Lyttelton seeking to appeal his convictions.

28. Confidential communications, including legally privileged material were all passed over to NZ Police and the Department of Corrections in

2012, all without Mr Lyttelton’s knowledge and authority. It is Mr Lyttelton’s claim that both Ms Quinn and Mr Davison QC acted with malice and were defamatory of Mr Lyttelton in their communications

[35] These communications were considered in detail by Katz J in her judgment in the judicial review proceedings.¹⁹In those proceedings, Mr Lyttelton was challenging the Department of Corrections’ direction that, while he was on parole, he must not associate with his former lawyers. Her Honour recited how Mr Lyttelton’s attack on Mr Ord and his partner had its origins in a bitter and long-running

_{commercial dispute between Mr Lyttelton and Mr Ord. She noted that, on
4 July}

2012, after Mr Lyttelton had been corresponding with his former lawyers for about eight months, Mr Lyttelton’s wife had emailed Mr Davison asking that she meet urgently with them to discuss matters, including the role that she and someone else had played in determining Mr Lyttelton’s defence strategy. She said she wanted the meeting in order that Mr Lyttelton did not “over focus on all of this”. Katz J

Mr Lyttelton’s wife and Mr Davison were obviously both well aware that Mr Lyttelton’s attack on Mr Ord and [his partner] had occurred in a context where he had become obsessed with Mr Ord and his long running legal dispute with him, with catastrophic consequences. Any indication that he was again becoming “over focused”, or exhibiting signs of obsessive behaviour, was therefore understandably a matter of some concern.

[36] In her judgment, Katz J referred to Mr Davison on 10 July 2012 contacting the Police Detective who had been Officer in charge of the criminal prosecution, expressing concern about Mr Lyttelton’s behaviour arising out of correspondence he had sent to a number of people, including himself, and of concerns for the safety of others arising out of the nature of that correspondence.

[37] The New Zealand Police were first respondent to those judicial review proceedings. Minter Ellison was involved as an interested party. In her judgment, Katz J said that Mr Lyttelton asserted that some or all of the correspondence that Minter Ellison provided to the Police was privileged and that it was wrong of the Police to consider or rely on such information for any purpose, including the protection of public safety. Further, it was wrong for the Police to share information (including the privileged information) with Corrections. Mr Lyttelton sought declarations that the complaints made to the Police by Mr Davison and Ms Quinn should not have been relayed to Corrections.

[38] Katz J noted that there was a dispute as to whether the documents provided to the Police were privileged. Minter Ellison claimed that their communications were not sent for the purpose of obtaining the firm’s legal advice but rather to ask for files and to complain about the firm. She held that there was nothing improper in Minter Ellison disclosing the relevant documents to the Police. She referred to rule 8.2(b)

2008 which provides that a lawyer must disclose confidential information where the lawyer reasonably believes that disclosure is necessary to prevent a serious risk to the health or safety of any person. Katz J noted that Dr Goodwin (Mr Lyttelton’s psychiatrist) had confirmed that the circumstances envisaged by rule 8.2(b) existed. She held Minter Ellison’s belief that such were the circumstances they were dealing with was reasonable in all the circumstances.

[39] Katz J’s judgment records Mr Lyttelton’s probation officer, recorded in a file note of 25 July 2012, he had discussed with Mr Lyttelton the outcome of his enquiries with Mr Davison, two partners from Minter Ellison and Dr Goodwin. The judgment records that the probation officer informed Mr Lyttelton that a written direction not to associate with his former lawyers would be prepared.

[40] The manner in which Mr Lyttelton had become obsessed with his grievances arising out of the commercial dispute with Mr Ord and the way he had become over- wrought, depressed, potentially suicidal and dangerous to others, was described by Mr Lyttelton in the Court of Appeal affidavit and evident in an undisputable way from the events of 8 April 2008. In submissions before me, Mr Lyttelton accepted that in 2012 the lawyers, with knowledge of the background to what happened in

2008, had genuine concerns for their safety and they had a reasonable basis for their concerns. He told me that it was because of this he had accepted Katz J’s judgment as to the Department of Corrections’ non-association direction.

[41] In any proceedings for defamation, the plaintiff must give particulars specifying every statement that the plaintiff alleges to be defamatory and untrue in the matter that is the subject of the proceedings.²¹Mr Lyttelton has not done that.

[42] Pursuant to ss 11 and 15 Limitation Act 2010, a claim for defamation has to be filed within two years after the date of the act on which the claim is based²², or two years after the claimant has late knowledge of the claim.²³It is clear from the Katz J judgment that, during 2012, Mr Lyttelton had knowledge of the 2012

statement of claim was not filed until 30 March 2016. Any claim for defamation is thus time-barred.

[43] In submissions, Mr Lyttelton complained of the fact the communications to the Police had been made to Detective Cook, the officer in charge of the criminal case. That was entirely appropriate. The concerns arose out of the circumstances and background to Mr Lyttelton’s attack on Mr Ord and his partner. The police officer with the most complete knowledge as to all of that would have been the officer in charge of the case. Had the communications not been with Detective Cook directly, any other police officer would inevitably have spoken to her about the concerns which have been conveyed to the Police.

[44] Although no defendant has filed a statement of defence, the circumstances in which Mr Davison and Minter Ellison communicated with the Police and/or Department of Corrections in 2012 was considered in detail by Katz J in the judicial review proceedings. Given the conclusions in her judgment, a defence of qualified privilege would be available and would undoubtedly succeed if any claim for defamation were to proceed further. Mr Davison and Minter Ellison were under a duty to advise the Police and/or Corrections as to the concerns they had for the safety of others and the basis for those concerns. The Police and/or Corrections were under a corresponding duty to receive that information.

[45] To succeed on a claim for defamation, Mr Lyttelton would also have to persuade a Court that there had been some damage to his reputation as a result of the communications he complained of. These communications were to only the Police and the Department of Corrections. The people in those organisations already had detailed knowledge of the offending of which in 2012 he had been convicted. Through various reports that had been made available to them and the sentencing remarks of Wylie J, they would have known of the psychiatric background to the offending. The communications in 2012 were to a limited pool of recipients. The standing of Mr Lyttelton in those people’s eyes would not have been lowered by the communications they received. Although the Court of Appeal subsequently allowed Mr Lyttelton’s appeal against his convictions, on his retrial Mr Lyttelton was again found guilty.

[46] In all those circumstances, even if Mr Lyttelton was to succeed in a claim for defamation, there is no prospect that he would be entitled to anything other than nominal damages.

[47] Mr Rzepecky referred to a number of cases in the United Kingdom where courts have held that it is an abuse of process to continue with proceedings which are pointless and wasteful and that such cases should be struck out. Courts have held this applies where the likely outcome in the case is totally disproportionate to the cost of the proceedings and the use of Court resources.²⁴A number of those cases relate to claims for defamation. It is appropriate for the High Court to apply those same principles in applying r 15.1 of the High Court Rules on a strike out

[48] For all these reasons, I am satisfied that, to the extent a claim for defamation can be identified as being included in the statement of claim, it has no prospect of success and it would be an abuse of the process of the Court for it to continue.

15. Mr Davison QC and MERW’s Breaches of their Fiduciary Duties owed to Mr Lyttelton by Defalcation, Misappropriation or Misapplication of Monies Invoiced and Received.

It is further Mr Lyttelton’s claim, that both Mr Davison QC and MERW have fraudulently billed Mr Lyttelton for their services, given their failure to follow Mr Lyttelton’s instructions.

Mr Davison QC and MERW could only deal with Mr Lyttelton’s money pursuant to Mr Lyttelton’s directions. Mr Lyttelton was never provided with copies of the invoices of either Mr Davison QC, or MERW, for approval for payment.

Mr Davison QC and MERW failed to disclose to Mr Lyttelton in writing in a way that Mr Lyttelton could understand, the way in which they would charge and an indication of Mr Lyttelton’s likely costs exposure.

Mr Lyttelton believes he was improperly induced by the misrepresentations of Ms Quinn of MERW to engage Mr Davison QC. Mr Davison QC himself failed to make any of the required costs

²⁴Jackson Civil Procedure, Volume 1, (Thomson Reuters, London, 2013) at [3.4]; Jameel v Dow

disclosures to Mr Lyttelton. Mr Davison QC failed to take any steps to explain the costs agreement with Mr Lyttelton and its impact, and to ensure that Mr Lyttelton understood the costs agreement such that Mr Lyttelton exercised a real and genuine choice in engaging Mr Davison QC.

Mr Lyttelton was entitled to proper explanation and advice about the extent to which he was committing himself financially before Mr Davison QC accepted instructions.

[50] In another section of the statement of claim, there is the heading “Mr Davison QC and MERW’s breaches of their fiduciary duties by fraudulent billing”. Under that heading, in paras 34-45, there are similar allegations to those in para 14 but mixed up with them are general assertions of negligence, lack of communication and failure to provide documents and information as to bills rendered.

[51] In his statement of claim, Mr Lyttelton said he was seeking a complete refund of all legal fees paid to Mr Davison QC and Minter Ellison, including compound interest.

[52] Rule 5.17 requires a party alleging malice or fraudulent intent to give particulars of the facts relied on in alleging that state of mind.²⁵

5.17(2) provides that if a party alleges a state of mind of a person, the party pleading must give particulars of the facts relied on in alleging that state of mind.

As a serious allegation, fraud or dishonesty must be alleged with care and particularity. A pleading may not contain any allegation of fraud in the absence of reasonably credible material that, as it stands, establishes a prima facie case of fraud – that is, material of such a character which would lead to the conclusion that serious allegations could properly be based upon it. Fraud cannot be left to be inferred from the facts – fraudulent conduct must be distinctly alleged and as distinctly proved. General allegations, however strong the words may appear to be, are insufficient to amount to a proper allegation of fraud: Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at 15.

[53] Mr Lyttelton, at the end of his statement of claim, said he was seeking damages from Ms Cathy Quinn and Minter Ellison for their having failed to protect Mr Lyttelton’s commercial interests by discharging their duties negligently and for

_{Minter Ellison having failed to exercise reasonable care and skill in
carrying out Mr}

Lyttelton’s legal work. Elsewhere, the statement of claim refers only to their role as solicitors in the criminal proceedings he faced. There were no particulars to support the claim as expressed at the end of the statement of claim. In submissions, Mr Lyttelton said it was a claim for a refund of costs paid in relation to the criminal proceedings.

[54] A claim of fraud has to be of sufficient cogency that it should go to trial.²⁶

[55] In his submissions, Mr Lyttelton said his allegation of fraudulent billing was on the basis Mr Davison and Minter Ellison were deceitful in billing him for work where they never had any intention of following his instructions and in sending bills to Mr Lyttelton’s wife without Mr Lyttelton’s knowledge.

[56] On my asking Mr Lyttelton as to where there was a pleading as to any instructions which he claims Mr Davison or Minter Ellison deliberately ignored, Mr Lyttelton ultimately acknowledged there was none but said he had referred to them in the Court of Appeal affidavit.

[57] In paragraph C3 of the statement of claim, Mr Lyttelton alleges “Mr Davison QC had also accepted the instructions of MERW without Mr Lyttelton’s knowledge and authority”.

[58] Annexed to Ms Shortall’s affidavit was a document, not denied or disputed by Mr Lyttelton, dated 15 April 2008, in which Mr Lyttelton confirmed in writing that he wished Minter Ellison to act in relation to the matter and authorising Minter Ellison to instruct Paul Davison QC to act as senior counsel in respect of the charges in place of existing solicitors and counsel.

August 2009, expressly as power of attorney for Mr Lyttelton, confirming that they had appointed Keegan Alexander to act as instructing solicitors for Mr Lyttelton, releasing Minter Ellison from any further involvement, advising that she had been in

_{contact with Mr Davison and paid his accounts directly, and asking
Minter Ellison to}

²⁶Commissioner of Inland Revenue v Redcliff Forestry Venture [2012] NZSC 94.

forward material they were holding to Mr Davison. Mr Lyttelton confirmed, and it is also apparent from the Court of Appeal judgment and Mr Lyttelton’s affidavit filed with the Court of Appeal that, despite the change in solicitors, Mr Davison continued to act as counsel for Mr Lyttelton through until his sentencing on 31 March 2010.

[60] In Mr Lyttelton’s statement of claim and the Court of Appeal affidavit, Mr Lyttelton has made allegations as to ways in which he said Mr Davison has been negligent in conducting the defence to the charges Mr Lyttelton faced. It is apparent from those statements that Mr Davison had extensive dealings with Mr Lyttelton, psychiatrists, the Police and the Crown prosecutor and was involved in a number of demanding hearings in the High Court as well as the earlier depositions hearing, all in his role as counsel. Mr Davison, for a period from 15 April 2008 to at least 31

March 2010 accepted the responsibility of acting as senior counsel for Mr Lyttelton to assist him in the difficult circumstances Mr Lyttelton faced. It is apparent from the Court of Appeal judgment that Mr Davison did what was required of him in a way that was not criticised at all by the Court of Appeal.

[61] Throughout that time, Mr Davison, as Queen’s Counsel, was instructed as counsel by solicitors. It was thus the instructing solicitors who had a liability to Mr Davison for his costs, not Mr Lyttelton. There is no pleading as to how Mr Lyttelton claims to have become personally liable to Mr Davison for his costs. Mr Lyttelton is thus seeking damages for a liability over costs which was not his.

[62] As importantly, Mr Lyttelton has pleaded that Mr Davison fraudulently billed his costs but, on this strike out application, no affidavit has been filed by the solicitors billed either supporting Mr Lyttelton’s claim or providing any evidence to the Court on which it might properly be suggested there is some real basis for the allegations of fraud which Mr Lyttelton has made. I note also that Mrs Lyttelton, as Mr Lyttelton’s power of attorney, took it upon herself to pay Mr Davison’s accounts as invoiced to Minter Ellison. In his written submissions, Mr Lyttelton said Mrs Lyttelton had paid all Mr Davison’s accounts. The Court of Appeal noted Mrs Lyttelton, holding his power of attorney, insisted on approving expenditure. I infer, to the extent Mr Davison’s costs have been paid, that was with the approval of Mrs Lyttelton. It is clear that Mr Davison’s invoices were seen by Mrs Lyttelton so that

either Mr Lyttelton or his attorney would have been aware, at least in a general sense, of the sort of costs that were being incurred as the work was done. There is nothing in the pleadings or by way of affidavit to suggest that either the solicitors or Mrs Lyttelton support Mr Lyttelton in the serious allegations he is making.

[63] In the statement of claim, there are no particulars as to the amounts paid to Mr Davison, what periods of work they related to or when those payments were made.

[64] In his notices of opposition to both strike out applications, Mr Lyttelton characterised his claim as relating to negligence and makes no mention of fraud. I also note there is no reference to fraud at the end of the statement of claim where Mr Lyttelton sets out the relief he is seeking.

[65] The statement of claim does not set out the particulars required to sustain a claim based on fraud.

[66] Pursuant to s 4 Limitation Act 1950, no claim based on fraud or deceit can be brought more than six years after that cause of action accrued.

March 2010 writing to Mrs Lyttelton and enclosing a copy of his sentencing submissions.

[68] Nowhere in his statement of claim or in his Court of Appeal affidavit does Mr Lyttelton make any criticism of the efforts, skill or judgment that Mr Davison exercised in making submissions for Mr Lyttelton when he was sentenced on 30

March 2010. Mr Lyttelton never appealed against the sentence that was then imposed.

[69] It is clear from Mr Lyttelton’s own account in the Court of Appeal affidavit of his dealings with Mr Davison that he was generally aware of the work which Mr Davison was doing for him and of the enquiries and efforts Mr Davison was making on his behalf over the period through to 29 Marc 2010. Mr Lyttelton and/or his

attorney knew that costs were being incurred with Mr Davison for the work that he was doing because costs had already been paid for his attendances.

[70] Mr Lyttelton had previously been involved in extensive and complex commercial dealings and had been a significant user of legal services. He knew Mr Davison was working for him as his counsel through to 29 March 2010. To the extent any liability accrued in relation to Mr Davison’s costs, that liability arose as Mr Davison did the work required of him. Mr Lyttelton knew of the work Mr Davison was doing and the extent to which he was following Mr Lyttelton’s instructions or otherwise as the work was done.

[71] Mr Lyttelton has provided no particulars or evidence to provide a cogent basis for alleging that he did not discover the alleged fraud and could not, with reasonable diligence, have discovered it until either 2012 or 2013 as he argued was the case or to suggest that, because of fraud or mistake, the limitation period should be postponed as allowed for by s 28 Limitation Act 2010.

[72] Even if Mr Lyttelton had not known of the alleged shortcomings in Mr Davison’s work as it was done or appreciated how it had damaged his defence case, that would not have delayed the time when the cause of action accrued. As the Court of Appeal recently acknowledged, in Murray v Morel & Co Ltd:²⁷

... the Supreme Court held there was no general principle that a cause of action did not accrue for limitation purposes until the elements were reasonably discoverable by the plaintiff. Tipping J emphasised that the element of knowledge of discoverability is relevant to the date when the loss occurs but the focus always remains upon the occurrence of loss rather than on discoverability of a loss which has already occurred. A plaintiff’s state of knowledge has no bearing on limitation issues because accrual is “an occurrence-based, not knowledge-based, concept”.

[73] Because Mr Lyttelton makes no criticism of the submissions Mr Davison made on his behalf at sentencing, any loss for which Mr Lyttelton seeks damages for fraud arose on or before 29 March 2010. Mr Lyttelton does not anywhere in his statement of claim allege or provide particulars of any loss he alleges he suffered by

²⁷Sonsram Trustee Ltd v Harrison Grierson Consultants Ltd [2017] NZCA 264 at [61] referring to

[74] The undisputed evidence from Ms Shortall’s affidavit is that Minter Ellison was engaged as Mr Lyttelton’s solicitors in connection with the criminal proceedings from 15 April 2008 to 31 August 2009. The firm generally billed Mr Lyttelton monthly. All invoices up to 22 December 2008 were paid in full by 30 January 2009. An invoice for $3,873.50, issued on 27 February 2009, was paid on 24 July 2009. Two accounts for a total of $3,849.95 from April and August 2009 have never been paid. Minter Ellison has not pursued payment of those accounts.

[75] Through engaging new solicitors, Keegan Alexander, Mr Lyttelton either personally or through Mrs Lyttelton could have taken up with Minter Ellison any complaints or concerns that Mr Lyttelton had as to the work Minter Ellison had done for him. Mrs Lyttelton knew of the costs that Minter Ellison was charging for their work. Both Mrs Lyttelton and Mr Lyttelton must have known generally what they were doing for him and what he now seeks to complain they had not done.

[76] The loss which Mr Lyttelton is seeking to recover from Minter Ellison through a claim for fraud is the recovery of the liability he incurred to Minter Ellison for legal costs. Those costs were all incurred by 27 February 2009, so Mr Lyttelton’s proceedings were filed more than six years after the cause of action accrued.

[77] In his notice of opposition to the strike out application, Mr Lyttelton said his cause of action accrued when Mr Lyttelton was sentenced on 31 March 2010. In his statement of claim, he has not however pleaded any loss in relation to that sentencing. He has made no allegations of fraud or even negligence in relation to that sentencing. The sentencing inevitably followed his pleas of guilty from 12

November 2009. At the time those pleas were entered, Minter Ellison was no longer his solicitors, having ceased to have any involvement with him on 31 August 2009.

[78] I am satisfied that Mr Davison, Minter Ellison, Cathy Quinn and Aaron Lloyd all have limitation defences under s 4 Limitation Act 1950.

[79] For all those reasons, I am satisfied Mr Lyttelton has no prospect of succeeding in a claim for fraud against the defendants and for him to continue with a claim on that basis would be an abuse of process.

[80] Under this heading and others, including “The doctrine of undue influence”, Mr Lyttelton alleges Minter Ellison and Mr Davison owed him a duty of confidentiality and they breached that with the communications in 2012 to the New Zealand Police and the Department of Corrections.

[81] For the reasons already discussed in relation to a claim in defamation, I am satisfied there is no merit and no prospect of Mr Lyttelton obtaining any relief arising out of Mr Davison’s or Minter Ellison’s communications with the Police and Department of Corrections in 2012.

[82] It is also under this heading that Mr Lyttelton has claimed Mr Davison and Minter Ellison fraudulently billed Mr Lyttelton for their services given their failure to follow Mr Lyttelton’s instructions. For reasons just discussed, I am satisfied he has no prospect of succeeding on that claim.

[83] In his statement of claim, Mr Lyttelton asserts that Mr Davison and Minter Ellison placed themselves in an impossible position of conflict between the interests of Minter Ellison, to protect the firm from a negligence claim, adverse publicity and the interests of Mr Lyttelton in receiving a competent defence.

[84] Mr Lyttelton asserts that Mr Davison was in a conflict of interest situation where he had an interest in protecting the reputation of Minter Ellison conflicting with Mr Davison’s responsibility as counsel to act in the best interests of Mr Lyttelton.

[85] These are allegations of bad faith and serious misfeasance. In making such allegations, Mr Lyttelton was obliged to provide particulars showing that his claims had some cogency. He has not done so. He has alleged that Mr Davison was conflicted through some business relationship that he had with some partners of Minter Ellison without providing any particulars as to what that relationship was or as to how precisely it resulted in his being conflicted in representing Mr Lyttelton.

[86] Mr Lyttelton claimed that Mr Davison and Minter Ellison prejudiced his defence through withholding from the Court information as to the ways in which he claimed Minter Ellison were negligent in representing him in the long-running disputes he had with Mr Ord. They are serious allegations as to bad faith on the part of both Minter Ellison and Mr Davison.

[87] The previous judgments of the High Court in the criminal proceedings, the judgment of the Court of Appeal and Mr Lyttelton’s Court of Appeal affidavit, all indicate that Mr Davison ensured the Court was fully aware of the background to Mr Lyttelton’s developing depression and mental instability during 2007 and 2008 and how that led to his actions on 8 April 2008. There is repeated reference by the courts to the bitter and long-running dispute with his former business partner, and, as Katz J described it, what Mr Lyttelton considered was a serious set-back in his legal proceedings against Mr Ord suffered in March 2008.

[88] There is nothing on record to suggest that, at any point in the criminal proceedings, any Judge, psychiatrist or jury would have considered they needed to know whether Minter Ellison were responsible for what Mr Lyttelton considered to be setbacks he suffered during his long running commercial dispute.

[89] In his Court of Appeal affidavit, Mr Lyttelton detailed in great length the origins and developing nature of his dispute with Mr Ord. He referred to a number of emails that he had sent to others from 5 December 2007 to 27 March 2008 in which he said showed his anxiety, disappointment and frustration at the way matters were developing in relation to that dispute. In the Court of Appeal affidavit he said the importance of these emails was “that they clearly document my declining mental health – through to my suicide attempts in April 2008”. Although he complained that those emails were not made available to Mr Davison, he did not suggest they showed Minter Ellison were responsible for the predicament that he thought he faced at the time of his attack on Mr Ord and his partner.

[90] In some of those emails, Mr Lyttelton expressed dissatisfaction with what he considered to be inadequate attention to his instructions from a solicitor of Minter Ellison. However, Mr Lyttelton wanted Minter Ellison to continue acting for him

and discussed his concerns with the managing partner of Minter Ellison. In March

2008, Mr Lyttelton requested Cathy Quinn, to take the lead in continuing to act for him in relation to his commercial dispute with Mr Ord. He said in the Court of Appeal affidavit that it was Cathy Quinn who arranged with his wife for Minter Ellison to be his solicitors and to instruct Mr Davison in his criminal proceedings.

[91] Against that background, I consider that the allegations of breach of fiduciary duty under several headings, arising out of an alleged agreement to act in a conflict of interest situation, are so obviously without merit and of such a scandalous nature as to be an abuse of Court proceedings.

[92] In his statement of claim, Mr Lyttelton makes a number of allegations as to Mr Davison’s alleged failure to provide him with specific correspondence, reports and police disclosure. He also complains of the extent to which Mr Davison was communicating and corresponding with Mr Lyttelton’s wife. It is apparent from Wylie J’s ruling of 12 November 2009, his sentencing notes and the Court of Appeal judgment that, from April 2008 to the time he was sentenced on 31 March 2010, Mr Lyttelton was mentally impaired. The Court of Appeal in their judgment referred to a report from Professor Mullen dated 22 March 2010 in which he reported that he and Dr Goodwin agreed that Mr Lyttelton was suffering from a major depressive episode and that his state of mind would have been affected by a drug overdose; in

addition, that Mr Lyttelton “currently presented as grandiose and entitled”.²⁸

[93] At this point, there is a dispute as to the extent to which Mr Davison communicated with Mr Lyttelton. I have considered the undisputed evidence as to Mr Lyttelton’s mental state at the time, the extent to which Mr Lyttelton says Mr Davison was communicating with Mrs Lyttelton and the extent to which it is clear from the judgment of the Court of Appeal that Mr Davison discussed with Mr Lyttelton the information he had received from the experts and the options available to him. I also note that there was a depositions hearing as to the criminal charges through which Mr Lyttelton would also have been aware of the Crown case against

[94] In the Court of Appeal affidavit, Mr Lyttelton also referred to requests he had made to see copies of various psychiatric reports during February and March 2010 and of various reports being sent to him by Mr Davison on 8 February 2010, 26

[95] It is apparent from the Court of Appeal affidavit that Mr Lyttelton was aware of what expert reports had been provided to him by 29 March 2010 and was aware by 29 March 2010 of what reports had been obtained or not obtained.

[96] Neither in the statement of claim nor through any document filed in opposition to the strike out application has Mr Lyttelton provided any particulars or evidential basis for suggesting that there was any bad faith on the part of either of Mr Davison or Minter Ellison in allegedly not providing to Mr Lyttelton copies of reports, correspondence or other documents. It is apparent from the Court of Appeal affidavit that many of those documents were not created until well after Minter Ellison had ceased to be his solicitors.

[97] Significantly, in this regard, in his statement of claim, Mr Lyttelton does not provide any particulars as to how this alleged failure to provide him with information has caused him any loss or as to how it prejudiced his defence. Not only is there no plea as to how Mr Lyttelton suffered any loss as a result of this failing but, on all the information which the Court has, there is no basis on which Mr Lyttelton could claim he did suffer such loss in the way either Mr Davison or Minter Ellison dealt with him. As a result of the Court of Appeal’s judgment, a retrial was ordered. Mr Lyttelton had and took the opportunity to deny the charges and defend himself in the way that he wanted. He was found guilty on all charges and received a greater sentence than had been imposed when Mr Davison was representing him.

[98] On Mr Lyttelton’s evidence, as set out in the Court of Appeal affidavit, I am satisfied that by 29 March 2010 he had sufficient knowledge of what had and had not been communicated to him for any cause of action relating to alleged lack of communication to have accrued before 29 March 2009.

[99] With regard to Tipping J’s statement in Murray v Morel and & Co Ltd, Mr Lyttelton has not showed that there is an arguable case for an extension or postponement which would bring the claim back within time.²⁹

[100] I have already discussed how a limitation defence would be available for claims based on fraud. The same defence would be available to claims in equity made on the basis of an alleged breach of fiduciary duty. I have regard to all the facts of this case as alleged in the pleadings and as apparent from the judgments in the criminal proceedings, including the judgment of the Court of Appeal, and the Court of Appeal affidavit. I consider the fiduciary claim in this case does parallel the claims in contract and tort “so closely that it would be inequitable to allow the

statutory bar to be out-flanked by the fiduciary claim”.³⁰I am satisfied that equity

[101] For those reasons, I find that Mr Lyttelton’s claims, relating to breach of fiduciary duty through the withholding of information, are an abuse of Court proceedings and must be struck out.

[102] In his statement of claim, Mr Lyttelton alleges Mr Davison misled Wylie J in the course of the trial through saying that Mr Lyttelton was in possession of the psychiatric expert reports. He also alleges that Mr Davison misled Wylie J as to the nature and basis of Mr Lyttelton’s instructions in regards to his guilty plea, his instructions in relation to a disputed facts hearing and a dispute that he claims was underway as to whether Mr Davison was following his instructions.

[103] Although Mr Davison has filed no affidavit in response to these allegations, in their judgment, the Court of Appeal referred to a fax Mr Lyttelton sent to Mr

³⁰Referring to Johns v Johns [2004] 3 NZLR 2A (CA) at [80]-[81]. See also Stratford v Phillips Shayle-George [2001] NZCA 299; (2001) 15 PRNZ 573 (CA) at [17]; Equity and Trusts in New Zealand (2^nded, Thomson Reuters, 2009) at [38.1.3(5)] note, limitation by analogy should readily be applied in claims against solicitors for a negligence claim.

For whatever reasons the Crown were not prepared to reduce the charges to this level (a section 190 charge), so I was left with the charges as they stand.

Consistent with my position from back in May/June 2008 I then elected to plead guilty rather than go to trial. In doing so, I took comfort from Prof Mullen’s report.

As Mr Rzepecky submitted, Mr Lyttelton clearly had Dr Goodwin’s report at that

[104] On 29 October 2009, Mr Lyttelton signed a memorandum of instructions for Mr Davison in which he stated it was his intention to plead guilty.³²Mr Lyttelton was found fit to plead and did plead guilty on 12 November 2009. At the time he did that, he must have known what psychiatric reports he had seen. His complaint in the Court of Appeal was that Mr Davison should not have let him plead guilty. The Court of Appeal said it was Mr Lyttelton prerogative to plead guilty.³³

[105] The Court of Appeal also found that Mr Lyttelton had insisted on entering a guilty plea when he did so.³⁴It would thus appear that there was no dispute between Mr Davison and Mr Lyttelton over his entering a guilty plea at the time that plea was entered.

[106] The Court of Appeal also found that, by 1 March 2010, Mr Lyttelton had accepted that a disputed facts hearing could not deal with any issue regarding criminal intent. The Court of Appeal said there was nothing in Mr Lyttelton’s complaint that his counsel had failed to follow his instructions to hold a disputed facts hearings. They pointed out that a sentencing Court had to accept as proved all facts essential to the charges, and that “Mr Davison correctly concluded that no purpose would be served by a disputed facts hearing. And, Mr Lyttelton eventually

[107] As with the claims made in relation to the alleged non-disclosure of information to Mr Lyttelton, there is no pleading as to any particular loss that Mr

[108] Given the Court of Appeal’s conclusions in this regard and the lack of particulars, for Mr Lyttelton to continue with a claim based on the broad allegations contained in his statement of claim in this regard, would be an abuse of the Court process.

[109] Given this, what Mr Lyttelton said in his Court of Appeal affidavit and what the Court of Appeal held was the situation, it would be an abuse of the Court process for Mr Lyttelton to continue with a claim against Mr Davison based on allegations of counsel misleading the Court.

[110] In a general way, Mr Lyttelton alleges Mr Davison and Minter Ellison failed in their duties to act competently in his defence.

[111] While the statement of claim makes sweeping allegations of incompetence against Mr Davison and Minter Ellison, there is generally an inadequate pleading of the particular facts that are relied on in making those allegations.³⁶

[112] Again, Mr Lyttelton has not particularised the loss he claims to have suffered as a result of the defendants’ alleged negligence. At the end of his statement of claim, Mr Lyttelton says he is seeking “a complete refund of all legal fees paid to Mr Davison QC in relation to Mr Lyttelton’s defence, including compound interest”, he has not stated “specifically the basis of any claim for interest and the rate at which interest is claimed”.³⁷

[113] As regards Minter Ellison, there is no dispute that, with the agreement of Mr Lyttelton, Minter Ellison instructed a Queen’s Counsel to lead the defence. It is also clear that Mr Davison dealt directly with both Mr Lyttelton and Mrs Lyttelton in that role. To the extent there are specific complaints in the statement of claim, they are

[114] As already discussed, Minter Ellison ceased acting as solicitors for Mr Lyttelton in relation to these proceedings at 31 August 2009. Mr Lyttelton has not particularised any loss that he claims to have suffered after that time as a result of Minter Ellison’s negligence. Mr Lyttelton has not provided any evidential basis, whether by way of pleaded particulars or any affidavit in opposition to the strike-out application, for arguing that, through his lack of knowledge as to what Minter Ellison had done or not done, the cause of action did not accrue until after 29 March

[115] I am satisfied Minter Ellison have a limitation defence to the claims in both contract and tort which have been made against them in negligence.

[116] In the statement of claim, Mr Lyttelton alleges that Mr Davison withheld information from Mr Lyttelton which Mr Lyttelton claims “would have impacted on [Mr Lyttelton’s] decision making”. He does not provide particulars as to the precise information which he should have received or assert how the withholding of that information caused him to act differently than he would otherwise have done during the course of criminal proceedings. Mr Lyttelton makes specific allegations that Mr Davison and Minter Ellison had failed in a number of ways to obtain evidence or raise with the Police, ESR and the Court relevant information as to the quantity of prescription drugs and alcohol Mr Lyttelton had taken before 8 April 2008, including Mr Davison’s failure to engage two particular experts in this field in early 2009. It is apparent from the Court of Appeal affidavit that the assertions he makes in his statements of claim were previously raised in detail before the Court of Appeal on Mr Lyttelton’s appeal against in his original convictions.

[117] Mr Lyttelton asserts that Mr Davison failed to engage an independent toxicology specialist for his defence and failed to engage two of the world’s leading experts in this field, Dr Menkes and Dr Healy in early 2009.

[118] It is also clear, from the Court of Appeal affidavit, that allegation Mr Lyttelton makes in his statement of claim as to Mr Davison’s incompetence or failure to follow instructions and failure to communicate, were raised in detail before the Court of Appeal.

[119] The Court of Appeal affidavit began with Mr Lyttelton’s statement that “[his] predominant grounds of appeal are in relation to the apparent incompetency of my defence counsel, Mr Paul Davison QC”.

[120] Mr Lyttelton also filed with his submissions on this strike out application a copy of his submissions to the Court of Appeal. These included some nine pages of complaints about counsel under the headings:

• My legal counsel allowed me to plead guilty while I believed I was not guilty;

[121] The Court of Appeal allowed Mr Lyttelton to file the affidavit, of which a copy was filed in response to the strike out application. As is normal when there are allegations as to the incompetence of counsel, Mr Davison also swore and filed an affidavit in the Court of Appeal. The Court of Appeal noted that Mr Lyttelton, who was representing himself, cross-examined Mr Davison and was himself cross- examined on his affidavit.

[122] In their judgment, the Court of Appeal noted various matters which are relevant to the current application.³⁸

(a) Blood and urine samples were taken from Mr Lyttelton some five hours after the incident. Analysis revealed Zopiclone at a level (.008) consistent with therapeutic use. The analysis did not identify alcohol, or

(b) It was obvious that Mr Lyttelton, who had no prior history of violence, was mentally unwell and possibly affected by the overdose of medication and alcohol.⁴⁰

(d) Mr Davison was briefed by Minter Ellison. He advised that a defence of insanity should be investigated. On his recommendation, Dr Tapsell was engaged. Dr Tapsell was satisfied Mr Lyttelton’s mental state was significantly affected by multiple factors such that his judgment was grossly impaired but he did not find sufficient evidence for a psychiatric defence.⁴²

(e) On Mr Davison’s recommendation, a second opinion was obtained from Professor Paul Mullen. Counsel cross-examined several witnesses at a depositions hearing on 26 November 2008. In his instructions to Professor Mullen, Mr Davison mentioned that Mr Lyttelton had been prescribed Aropax in a generic form together with sleeping tablets.

August 2009, he instructed counsel firmly that he did not wish to go to trial because he could not face it and did not want to put his family through it. He agreed, however, to await the advice of Professor Mullen who reported on 7 October 2009.⁴³

(g) Crown and defence counsel discussed alternative charges to which Mr Lyttelton might plead guilty. On 5 October, Mr Glubb, (Crown counsel) refused to reduce the attempted murder charge or to withdraw the aggravated burglary charge but would consider reducing the charge

(h) On 8 October 2008, Mr Davison provided Professor Mullen with further information about Mr Lyttelton’s state of mind after the offences. It included Dr McCormick’s report and a report from ESR.⁴⁵

(i) By letter of 27 October, Mr Davison sought Professor Mullen’s advice about further potential psychiatric defences and provided him with a judgment concerning the defence of automatism. He also drew attention to the level of Zopiclone in Mr Lyttelton’s blood.⁴⁶

(j) By letter written on 12 November 2009, Mr Davison drew the Crown prosecutor’s attention to Professor Mullen’s opinion that Mr Lyttelton’s behaviour was caused by a severe depressive illness, coupled with his recent overdose and asked this to be drawn to Dr Goodwin’s attention. Mr Davison spoke to Dr Goodwin, asked Dr Goodwin to address the potential and possible effects of the Zopiclone overdose on Mr

(k) In a letter to Crown counsel sent on 18 November, Mr Davison drew particular attention to the toxicology report and advice from a pathologist, Dr Pratt, that the drug may cause confusion and aggression. He also explained that he proposed to prove that Mr Lyttelton had taken

14 tablets together with all or most of a bottle of wine. He received Crown counsel’s assurance that this letter had been given to Dr Goodwin.⁴⁸

(l) A disputed facts hearing was scheduled for 31 March 2010 to address the experts’ differences of view, focusing on the effects of depression and Zopiclone.⁴⁹

(m) Around 1 March 2010, Mr Lyttelton had a change of heart about his earlier guilty pleas and suggested he might need to change his plea because he did not have any intent to murder. Mr Davison then had a

Mr Davison, he reminded Mr Lyttelton of the extensive discussions they had on the issue of a plea before Mr Lyttelton pleaded guilty, that Mr Lyttelton had insisted on entering pleas of guilty notwithstanding Mr Davison’s advice that the plea of guilty to attempted murder meant an admission that he had acted with deliberate and criminal intent. Mr Davison recorded his advice that any application to change his plea would have little prospect of success and Mr Davison would be required to explain the circumstances in which he had taken his instructions and would have to refer to the written memorandum of instructions which Mr

(n) Mrs Lyttelton emailed Mr Davison on 2 March 2010 advising that she held Mr Lyttelton’s power of attorney and he was not to incur further costs without her consent.⁵¹

(o) On 18 March 2010, Mr Davison provided Professor Mullen with further information about Zopiclone and Aropax, including a paper by Dr Healy which had been obtained by Mr Lyttelton’s family.⁵²

(p) On sentencing, Wylie J viewed the medical reports at some length, accepting that Mr Lyttelton’s mental disorder and drug overdose seriously impaired his judgment and self-control, significantly reducing the starting point sentence for that reason.⁵³

(q) The Court of Appeal did not accept Mr Lyttelton’s submission that Mr Davison failed to explore whether he had some viable psychiatric defence in relation to the specific intent required by the charges.⁵⁴

(r) The Court of Appeal did not accept the submission that Mr Davison ought to have conducted further research, particularly with regard to obtaining advice about the effects of his drug overdose before Mr

difficulties in trying to advance the theory his intake of drugs and alcohol might have induced automation or otherwise deprive him of intent.⁵⁶

(s) The Court noted Mr Davison’s denial of Mr Lyttelton’s complaint that Mr Davison had spent too little time preparing the case. The Court clearly rejected that complaint, refusing to allow Mr Lyttelton to cross- examine Mr Davison in relation to it and noted that counsel’s performance was to be measured not in hours expended but in what was done or not done.⁵⁷

(t) The Court of Appeal rejected the complaint that Mr Davison had failed to see if there was any possibility of having the charges reduced, accepting Mr Davison’s evidence that the only change the Crown were willing to make was in relation to the charge involving Mr Ord’s

(u) The Court of Appeal rejected the submission that Mr Davison had erred in allowing Mr Lyttelton to plead guilty knowing that he denied intent. They stated:⁵⁹

[69] So far as the advice given in this case is concerned, we are satisfied that Mr Davison explained to Mr Lyttelton, not once but repeatedly, that to plead guilty was to admit the intent inherent in the charge, and specifically, that to plead guilty to attempted murder was to admit the intent to kill Mr Ord. Indeed, it is not in dispute that he gave such advice.

(v) They noted that a good deal of Mr Lyttelton’s evidence and submissions was directed to his complaint that counsel failed to follow his instructions to hold a disputed facts hearing. They said there was nothing in this point. The sentencing Court had to accept as proved all facts essential to the charges. The experts had reached substantial agreement on the only issue in dispute. Mr Davison correctly concluded that no purpose would be served by a disputed facts hearing. Mr

(w) The Court of Appeal noted that, when Mr Lyttelton indicated he wanted to change his plea, Mr Davison advised that an application to change plea would have little prospect of success and Mr Lyttelton made no such application. The Court of Appeal were willing to assume that, had the sentencing Judge been faced with an application, he would have found that Mr Lyttelton pleaded under a self-induced mistake of law, ie that, with his plea of guilty, there could still be a disputed facts hearing over whether or not he had the necessary intent required to be guilty of the charges. They decided, with the benefit of hindsight and on the basis of information they then had, the advice from counsel was incorrect but expressly stated they did not characterise the advice as negligent. They stated that Mr Davison, having himself explained the legal position, reasonably thought that Mr Lyttelton understood the implications of

[123] It is thus apparent that, before the Court of Appeal, Mr Lyttelton made wide- ranging allegations as to ways in which he claimed Mr Davison was negligent. All those complaints were rejected. The only matter on which the Court found Mr Davison’s advice to be incorrect was in relation to whether or not a late application to change Mr Lyttelton’s plea of guilty would have been successful but, as to that, the Court of Appeal said Mr Davison had not been negligent.

[124] In relation to this last issue, there is no allegation in Mr Lyttelton’s statement of claim that Mr Davison was negligent in giving that advice. Furthermore, in his submissions before me, Mr Lyttelton confirmed that he was not wanting to allege Mr Davison was negligent in this regard. He considered that, at the time Mr Davison was correct to advise him that, if an application for leave to withdraw guilty pleas had been made, it would have had little prospect of success.

[125] Mr Lyttelton had thus accepted before 29 March 2010 that no application would be made to withdraw his guilty pleas. As I stated earlier, Mr Lyttelton does not allege that Mr Davison was negligent in the submissions he made when Mr

[126] In neither the statement of claim nor in any affidavit has Mr Lyttelton referred to any loss he might claim to have suffered by reason of his counsel’s alleged negligence after 29 March 2010.

[127] There is no basis, either in the pleadings or in any evidence which is before me, which would enable Mr Lyttelton to seriously argue that, by reason of s 28

Limitation Act, the causes of action in either tort or contract should be deemed to have accrued only in 2012 or 2013 on the basis it was only then that he became aware of the ways in which he asserts Mr Davison had failed him as counsel. He has filed no affidavit in response to the strike out application and there are no particulars in his statement of claim that he might rely upon to support such an argument. The record he put before the Court of Appeal as to his dealings with Mr Davison up to 29

March 2010 show that, before that date, he knew what Mr Davison had been doing for him and what he complained Mr Davison had not done.

[128] Against that background, I accept that Mr Lyttelton has no prospect of succeeding on a claim against Mr Davison in negligence because of the limitation defence which is available to Mr Davison by reason of s 4 Limitation Act 1950.⁶²

[129] I also find that the complaints of negligence which Mr Lyttelton relies on, to the extent they have been adequately particularised in his statement of claim, were at issue in the criminal proceedings before the Court of Appeal. Detailed evidence was presented to the Court as to those complaints. All allegations of negligence against Mr Davison have been comprehensively rejected by the Court of Appeal. It would be an abuse of the Court process to allow Mr Lyttelton to re-litigate those same issues through civil proceedings.

[130] In his submissions, Mr Lyttelton submitted the decisions of the Court of Appeal, in relation to Mr Davison’s competence, should not be regarded as binding because counsel error is not, in itself, a ground of appeal under the Crimes Act, s

385(1). He submitted there was no general rule of law that the opinion of a court expressed in a judgment could not be questioned in different proceedings outside the

[131] Mr Lyttelton argued the issue of counsel’s competence or alleged negligence had not been before the Court of Appeal. He argued that these current proceedings do not involve a collateral attack on the judgment of the Court of Appeal because the Court of Appeal’s judgment was that the appeal should be allowed and the convictions quashed.

[132] That last statement is not a realistic way of considering what issues the Court of Appeal determined. I should not consider the strike out application on the basis Mr Lyttelton has suggested.

[133] In considering whether proceedings are an abuse of process, the Court is entitled to look at the actual issues that were determined by another Court, the circumstances in which those determinations were made in deciding whether or not it would be an abuse of process for someone to attempt to litigate the same issues again. Although the issue before the Court of Appeal was ultimately whether or not there had been a miscarriage of justice, it was clear, from the way Mr Lyttelton presented his appeal, the material he presented to the Court in support of it and from the Court of Appeal’s judgment, that the Court of Appeal, on hearing that appeal, did determine Mr Davison had not been negligent or incompetent in the myriad ways alleged by Mr Lyttelton.

[134] The Court of Appeal did allow Mr Lyttelton’s appeal. In doing so, they rejected the allegations of incompetence on the part of counsel which Mr Lyttelton had advanced in detail before them.

[135] For all these reasons, I am satisfied Mr Lyttelton has no prospect of being successful on his claims in negligence against the defendants and for him to continue with the proceedings on that basis would be an abuse of process.

[136] Both Minter Ellison and Mr Davison raise, with justification, objection to the form of the pleadings, the lack of particulars, the inclusion of significant assertions as to the law, repetition and others. It is not necessary for me to deal further with those. Because of the ways in which these proceedings are an abuse of process, this

is not a situation where it would be in the interests of justice to allow Mr Lyttelton to effectively re-plead his claims by way of an amended statement of claim.

[137] In Lai v Chamberlains, the Supreme Court considered whether and to what extent barristerial immunity against civil claims should be retained. Elias CJ, writing for herself, Gault and Keith JJ, referred to the judgments from the House of Lords in Arthur J S Hall & Co v Simons and the view of the minority in that Court that, in criminal proceedings, the risk of liability would erode the exercise of

particularly to the judgment of Lord Hope who “thought the pattern of protection provided by the immunity was inadequately replaced by the abuse of process response” because of “the risk that the removal of the immunity would in some cases lead to a defensive approach by advocates” and the risk they would be exposed to harassment at the instance of “clients who may well be devious, vindictive and

[138] Elias CJ referred to the judgments in Hunter and the New Social Credit Political League Inc v O’Brien as indicative of the way, in New Zealand, abuse of process had been recognised as an independent duty of the Court to prevent abuse, not limited to fixed categories.⁶⁵

[139] Elias CJ, as with all judges in the Supreme Court, decided that there should not be a distinction for the purposes of immunity between advocates conducting criminal proceedings and advocates conducting civil proceedings. In reaching that conclusion, Elias CJ stated that the protection for the public interest in the judicial process could be achieved through “the substantive doctrines which prevent litigation and the power to strike out proceedings for abuse of process under the

... both substantively and descriptively it is better to achieve the ultimate objection of protecting the judicial system in necessary cases by means of a developed doctrine of abuse of process.

[141] In agreeing with the abolition of barristerial immunity, Thomas J stated:⁶⁸

What is important is that meritorious claims which would have hitherto been blocked by the defence of barristerial immunity may now proceed. Unmeritorious claims can be stopped in their tracks as an abuse of process. Existing principles which apply to applications to strike out a proceeding as an abuse of process, will no doubt be augmented over time with the development of further principles to provide the legal system with the necessary responsive and proportionate protection.

As with the majority, Thomas J rejected the isolation of any particular category for automatic disqualification. He considered it appropriate to leave the question of whether there was an abuse of process in the particular circumstances of a claim to the judgment of the courts on the basis of a merits-based judgment.

[142] I am satisfied, from the previous relevant judgments and the Court of Appeal affidavit, that there is no proper basis on which Mr Lyttelton can argue there was any omission or act on the part of Mr Davison as counsel, or Minter Ellison, Mr Lloyd or Ms Quinn as solicitors, which caused Mr Lyttelton to be wrongly convicted, or any loss which could properly be the subject of a claim for damages. The Court of Appeal decided that, on the basis of a self-induced mistake on Mr Lyttelton’s part and the slight possibility that he might have had a defence to the charges he faced, there was a miscarriage of justice that required a retrial. After that retrial, Mr Lyttelton was found guilty of the charges to which he had earlier pleaded guilty with the advice of counsel. His sentence following trial was significantly longer than that imposed after he had pleaded guilty. As a result of the convictions being quashed, the criminal proceedings against him were not concluded until some eight years after his offending.

[143] The Court of Appeal judgment and Mr Lyttelton’s Court of Appeal affidavit

judgment in the best interests of the person he was representing, in assessing the strength of the prosecution case and the difficulties Mr Lyttelton would face in advancing a defence. With the benefit of that advice, Mr Lyttelton pleaded guilty as he had wanted to do since soon after he was charged. With the guilty pleas, Mr Lyttelton avoided, for himself, the ordeal of a trial and also the costs that would have been associated with that. These would have been considerable given the involvement not just of his counsel but also Mr Lyttelton’s belated wish to engage various expert witnesses, some from overseas.

[144] Incidentally, with the benefit of Mr Davison’s advice and judgment, Mr Lyttelton’s guilty pleas avoided the ordeal of a trial for Mr Lyttelton’s victims. The pleas also avoided the significant costs to the prosecution of obtaining their own expert evidence and the use of Police, Crown prosecution and Court resources that would have been involved in the jury trial. Those latter benefits were recognised in the significant discount against a starting point sentence which Mr Lyttelton received after his guilty pleas when he was first sentenced.

[145] This is a case where, to allow Mr Lyttelton to continue with the proceedings he has brought against his former lawyers, would have unfortunate consequences for the criminal justice process. It is a paradigm situation for the Court to use its abuse of process jurisdiction to ensure this does not happen.

[146] In all these circumstances, and for the reasons detailed earlier in my judgment, I find it would be an abuse of process for the High Court to permit Mr Lyttelton to continue with these proceedings and they are struck out.

[147] The defendants’ are entitled to costs. Counsel for the defendants are to file memoranda by 11 August 2017. Mr Lyttelton is to file any memorandum in response by 25 August 2017. The memoranda are to be no longer than five pages. I will deal with costs on the basis of those memoranda.

High Court of New Zealand Decisions

Lyttelton v Davison [2017] NZHC 1716 (24 July 2017)