While litigants can feel aggrieved after an adverse court ruling, lawyers sometimes feel their beautifully crafted legal argument failed to get sufficient recognition from a trial judge. Lawyer’s feelings are usually discussed discretely, out of public view. They are wise to the professional and legal risks of publicly criticising a judge, with striking off likely in extreme cases for unprofessional conduct and with it the end of their legal career.
Christchurch litigation lawyer Grant Shand let the world know his views of one judge. He has had his full of adverse court rulings blocking attempts to progress class actions on behalf of homeowners arguable short-changed in their earthquake insurance payouts.
He alleges High Court associate judge Lester consistently and unfairly favours insurers. Part of a concerted campaign to frustrate his clients’ claims, he alleges.
Last year, Mr Shand directly warned Judge Lester that a complaint to the Judicial Conduct Commissioner was in the offing. Earlier this year, his complaint was dismissed by the Commissioner.
Adverse rulings against one client, Trevor Ressels, became an open platform for Mr Shand.
Whilst the legal issue was one litigant’s allegations of potential bias by a sitting judge, the background economic issue was difficulties Mr Shand has faced in gaining income from litigation management of multiple class actions.
A class action, if successful, commonly results in lawyers conducting the litigation retaining a percentage slice of any negotiated payout when distributing the balance to members of the agreed class.
As part of Mr Ressels’ court application, Mr Shand listed summaries of several previous class actions he had promoted where Judge Lester refused to allow litigation to continue.
Mr Shand alleged Judge Lester was conducting a campaign to frustrate his class action applications.
The narrow legal issue was Mr Ressels’ application for leave to appeal Judge Lester’s November 2023 ruling that Mr Ressels could not stand as designated representative plaintiff in a proposed class action on behalf of some 7500–9500 former AMI Insurance customers who might have been eligible for compensation to cover professional fees for preliminary expert assessment of earthquake damage to fences, drives, patios and swimming pools.
Judge Lester had ruled this claim could not proceed as a class action. Not all such ancillary damage required preliminary expert assessment to determine the size of an insurance payout. A damaged swimming pool might require expert assessment; a cracked concrete path, not likely.
Each home-owner claiming compensation for professional fees they may have been entitled to had to sue individually. They could not all be lumped together without prior consent into a widely-drawn class action. Individual claims differed too much from case to case to enable a joint class action, Judge Lester ruled.
Mr Ressels, represented by Mr Shand, asked that Judge Lester recuse himself from hearing the leave to appeal.
It was claimed Judge Lester could not bring ‘an impartial mind’ to the hearing.
In effect: the recusal application was not so much an issue between Mr Ressels and the Judge, as an issue between Mr Shand and the Judge with Judge Lester forced to defend his previous court rulings as not being evidence of continuing bias.
Judges must recuse themselves from sitting on a case where there is actual bias, or ‘apparent bias;’ any suggestion that a judge might not decide a case other than on its legal and factual merits.
Declining to recuse himself from the Ressels case, Judge Lester obliquely adopted comments made by the insurer’s lawyer present in court. The fact there had been a series of adverse decisions against Mr Shand’s class action clients does not establish apparent bias, the lawyer said.
The primary reason for ongoing adverse court rulings was Mr Shand repeating his earlier unsuccessful legal arguments in subsequent class action applications and failing to act on the judge’s earlier comments, she argued.
A major legal difficulty when establishing a class action is to define the class of litigants and the legal issue they have in common.
Ressels v. Southern Response Earthquake Services Ltd – High Court (21.05.24)
24.128