Consideration
14One of the matters that might be expected reliably to inform the current debate is the rationale behind a rule that can on one view operate effectively to penalise a plaintiff for choosing the "wrong" court in which to litigate his or her claim. The only basis upon which the chosen court can be assessed as wrong in this context is by reference to the amount recovered. The only sanction for failing to choose the "correct" court is the one impliedly indicated or covered by the rule. Despite my concern to understand the historical or principled reasons for the sanction, no satisfactory or unambiguous rationale has emerged.
15The old system of differing scales of costs for legal practitioners has long gone. Recovery of costs upon an assessment no longer involves the application of rates for legal work that vary according to the court in which the work was performed. In that sense, therefore, there is no incentive for a legal practitioner to choose a jurisdiction that attracted a more generous scale of costs because the assessment process is effectively directed to the calculation of what is a reasonable recompense for the work that is performed, regardless of the venue.
16The rule in question has seen equivalent expression over the years in various iterations in the rules of Court. The wisdom that informs the existence of the rule seems to be no more and no less than an indirect check or brake upon the assignment of business to the court considered most appropriate to hear it, measured somewhat bluntly by reference only to the amount of the verdict.
17It is important immediately to observe that the rule does not in terms say that a plaintiff is not entitled to an order for costs, or even that an order for costs will not ordinarily be made, if the plaintiff recovers an amount of less than $500,000. Nor does the rule say in terms that the commencement or continuation of proceedings by a plaintiff in the Supreme Court rather than in the District Court will not have been warranted unless he or she recovers an amount of not less than that sum. I note that the rule referred to, in the expression "[t]he rule applies if", in the opening line of UCPR 42.34(1), is in practical terms, UCPR 42.34(2). The implication is that the commencement or continuation of proceedings in the Supreme Court, where the plaintiff recovers less than $500,000, will not or at least may not have been "warranted".
18Nor does that implication limit the Court to a consideration only of the amount recovered. For example, the rule does not foreclose the possibility that there may be other reasons why the Court might come to the view that the commencement or continuation of proceedings in this Court was not warranted. Accepting the limited use that can be made of it, the introductory heading to the rule arguably captures the generality of its application in the words "costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court". Whatever other factors may theoretically be considered in making a decision about whether or not this Court is appropriate, VSL only relies in the circumstances of this case upon Mr Taboas' failure to recover in excess of $500,000 and the anterior matters concerning his truthfulness about his condition, which VSL says led to that result.
19In the present case it is uncontroversial that Mr Taboas, through his legal advisers, sought VSL's consent to unlimited jurisdiction in the District Court. It will immediately be apparent that that approach was based upon what VSL would contend was an equally unfounded view of Mr Taboas' case, that he at least should have understood was proceeding in accordance with his less than forthcoming instructions concerning the full and precise nature and extent of his injuries and disabilities. In other words, even the application for unlimited jurisdiction in order safely to maintain the proceedings in the District Court was unnecessary having regard to what Mr Taboas knew, or ought to have known, and revealed to his legal representatives at the time. In that sense, VSL undoubtedly contends that Mr Taboas can derive no support from its refusal to consent to the application for unlimited jurisdiction because it was in effect a faux application in any event.
20At large in this discussion is also the difficulty of assessing what a particular claim is worth, or more particularly, doing so within anything other than fairly broad and correspondingly vague tolerances. In the present case, Mr Taboas managed to secure a base verdict of almost $500,000. But for the view I took of his non-economic loss, as a percentage of a most extreme case, he might have recovered much less of somewhat more than that amount. Put another way, even if Mr Taboas had provided his lawyers with the same information concerning his condition as that which emerged during the trial, and with the benefit of which I decided the case, there is no guarantee that they would not have still sought to litigate the proceedings in this Court.
21There may be cases where a plaintiff fails conspicuously to approach the sum of $500,000. Counsel for VSL referred me to a number of them. This is not such a case.
22I am also unable to agree with the submissions of either VSL or Abigroup that they should, in slightly different ways, be liable only for 50 percent of the costs that would otherwise be payable by them as losing defendants. On the one hand, VSL will only be liable for that proportion of Mr Taboas' total costs as are attributable to, or which Mr Taboas incurred in, the proceedings against VSL. Correspondingly, Abigroup will only be liable for that proportion of Mr Taboas' total costs as are attributable to, or which Mr Taboas incurred in, the proceedings against Abigroup. The fact that each defendant was found by me to be equally liable to Mr Taboas on the liability issue does not logically or even fairly lead to the result that they are less liable for the whole of the costs referrable to establishing Mr Taboas' respective cases for damages against each of them. Neither of the cases to which Abigroup directed my attention supports any proposition or statement of principle to the contrary. Indeed, the fact that both defendants were sued in the one set of proceedings must necessarily, or at least presumably, have produced economies of scale and corresponding costs savings that reduce the amount of costs for which each would otherwise have been potentially liable if sued separately.
23In my opinion, there is no basis for making any order for costs other than what might be described as the usual order. I am satisfied that the continuation of these proceedings in this Court in all of the circumstances was warranted. I decline to make any other order apportioning the liability of either VSL or Abigroup for costs in accordance with my findings concerning their responsibility for his loss and damage as between themselves.