Chris Gillibrand’s legal action against his solicitor for allegedly not curtailing a ‘hopeless’ legal defence to claims from Bupa for $53,000 owing for care of Chris’ late father did not succeed. He had previously recovered $73,950 damages against the barrister representing him in court.
The $53,000 Bupa debt had blown out to $200,000 with addition of extra costs for his replacement as executor of his late father’s estate together with Bupa Care Services Ltd’s full legal costs responding to what was described as a hopeless defence to its claim for unpaid care costs. It is rare for a successful litigant to be awarded full legal costs; court regulations usually allow a contribution only.
A barrister handling his defence was heavily censured for his conduct. Barrister Andrew Holgate had likened Bupa’s care services to Auschwitz concentration camp and had emailed copies of Chris Gillibrand’s allegations about Bupa’s poor care to the Northern Advocatenewspaper ahead of the trial.
The Court of Appeal was told Chris’ father Gordon Gillibrand required 24-hour care at Bupa’s Dargaville care facility from 2003 after suffering a stroke. He died eight years later, prematurely because of poor care from Bupa, Chris alleged. When hospitalised, Gordon transferred his farm to a family trust controlled by son Chris. The full sale price of $505,000 was left in as a loan. Gordon paid Bupa’s rest home fees until his own cash resources ran out, then the family trust made payment on his behalf reducing the debt owed Gordon personally. The trust stopped paying in 2009; Gordon’s debt to Bupa built up. When he died, Bupa claimed against his estate. By then, the only estate asset was the balance of the debt owed for the farm purchase. As executor, Chris refused to pay saying variously the debt due from the family trust had been forgiven and that Bupa should not be paid because it was liable in damages for allegedly poor care of his father. Whangarei solicitor George Swanepoel initially handled the complaint. As court proceedings became likely, barrister Andrew Holgate took over the file. He was later subject of a complaint to the Law Society and ordered by the High Court to pay $73,950 damages to Chris for his conduct of the defence to Bupa’s claim.
Chris alleged solicitor Mr Swanepoel was equally to blame. The Court of Appeal ruled Mr Swanepoel was not liable; he had told Chris that he disagreed with Mr Holgate’s litigation strategy and reminded him he could be liable for costs, without explicitly telling him that in the extreme he could be required to pay Bupa’s full legal costs. The Court of Appeal said Chris Gillibrand chose not to act on Mr Swanepoel’s advice and in any event was unlikely to accept any advice from him no matter how forcefully put.
Gillibrand v. Swanepoel – Court of Appeal (29.10.18)
18.215