An English lawyer pointed out that a certain set of proceedings we had referred to as a SLAPP, was actually worse.
Failed politician Colin Craig’s recent activity in the High Court, yet another meritless defamation claim that NZ Herald refers to as “lawfare”, also fits the lawyer’s definition of a “BLAPP” (Bogus Litigation Against Public Participation).
Craig’s claim is against John Stringer, a fellow member of a defunct political party. It certainly appears that he was attempting to continue his harassment of Rachel McGregor in the witness box. However, as the Herald reports:
"All I ever did was stand up for Rachel MacGregor," [Stringer] said, pointing out that he has consciously decided not to call her to testify for what would be a fourth time, even though he believed it would likely put his defence at a disadvantage.
MacGregor, Stringer, and several others have previously been embroiled in defamation proceedings with Craig, with McGregor being awarded $400,000 in 2021.
New Zealand does not have anti-SLAPP (Strategic Litigation Against Public Participation) legislation, but parties bringing retaliatory or bogus proceedings could similarly come unstuck in other ways.
Since December 2018 Bay of Plenty DHB has been claiming that Ana Shaw, her then advocate Allan Halse and his company Culturesafe NZ Limited are in contempt (of the Employment Relations Authority), and seek penalties and costs. There’s currently an application to find out exactly what BOP DHB say Shaw and Halse have done that was naughty, because that has never been clear.
However, as we struggle to keep up with the numerous interlocutory and preliminary developments that might have killed it off, we note that even after more than three years the DHB still hasn’t specified what Shaw and Halse are supposed to have done wrong. We always knew the BOP DHB v Shaw (and Halse) proceedings were brought in bad faith, but it’s only recently that we’ve considered that they might be bogus.
Shaw’s personal grievance claim is currently before the Court of Appeal.
Two OIA requests, several months apart, indicate that BOP DHB’s external counsel are now doing a lot of unpaid work. Someone at the DHB may have looked at the big picture and come to the conclusion that the proceedings are bogus and the DHB had been persuaded to act against its own interests in bringing those proceedings and did so because of some of the legal advice it received.
There’s more – the Health Minister recently sent in a Crown Monitor because BOP DHB has been running an operating deficit for a few years and its current debt was reported at over $30 million. Based on the OIA responses the cost of defending Shaw’s claims is currently around $300,000, which is unfortunate, but a similar anount has been spent on the bogus proceedings, which some might consider unacceptable.
The figures would be higher if the DHB were paying their law firm as normal, but based on the amount of activity between the two OIA requests on costs figures, we believe that less than half the work the firm is doing is being paid for.
Where law firms are called in to defend employers from personal grievance claims, lawyers can avoid this scenario by not advising their clients to retaliate with bogus proceedings (BLAPP) in the Court or Authority.