Week in Review
Lawyer: Let me off Whaleoil case
Spare a thought for lawyer Brian Henry, the unorthodox advocate for clients from Winston Peters to Cameron Slater, aka Whaleoil.
Henry has represented the blogger, who is being sued for defamation but claiming to be too broke and unwell to continue with the case, but the lawyer wants out.
The High Court will not let Henry walk away. He has been asking since February to withdraw from the three year-old case, claiming Slater owes legal fees, is now bankrupt and should not still be a party to the defamation action and that Slater is unable medically to continue instructing him.
The controversial blogger had a stroke last October.
Henry is New Zealand First leader Winston Peters' longtime lawyer and is also representing Peters in a case currently against National ministers and state officials for a leak of the politician's seven year over payment of national superannuation.
Henry's argument that Slater should no longer be capable of being sued, and that he as Slater's lawyer ought to be able to withdraw, has failed to persuade Justice Matthew Palmer in the High Court.
The case against Slater will go on, and Henry will have to keep representing him for now, Palmer has ruled. A hearing is set for Friday week, and Slater must provide information by Monday.
The case has been brought by three medical professionals, Dr Doug Sellman, Dr Boyd Swinburn and Shane Bradbrook who claim blog posts on the Whaleoil site by Slater defamed them.
They are also suing public relations man Carrick Graham, son of former National minister Sir Douglas Graham, and the former National MP Katherine Rich as head of the Food and Grocery Council for assisting with or commissioning paid blog posts by Whaleoil to attack them.
In October last year and again in March, Justice Palmer decided Slater and Graham had provided insufficient answers to questions from the medical academics' lawyers and needed to do so, both in writing and by turning up to court personally for face to face interviews.
Slater has not done so. On his behalf, Henry has argued Slater had two medical opinions saying he was too ill to continue with the case. Then he argued the personal bankruptcy meant the defamation action should be halted and any action that survived ought to be against the Official Assignee as legal custodian of Slater's property and finances.
In March, Justice Palmer used his discretion to order the case would go on, despite the bankruptcy. The plaintiffs then sought orders forcing Slater to comply and making him respond in writing to their application.
Now, in his eighth judgment on these matters, delivered on Tuesday, he says Slater is either actually too ill to continue - in which case either a "litigation guardian" should be appointed or a proper court hearing on his illness and examination of his medical evidence needs to be held - or Slater simply does not want to want to do so. "In which case, he must face the consequences of the plaintiff's current application."
The judgment outlines Henry's attempts to withdraw from the case. In February he and his junior counsel sought leave of the court to withdraw "because they no longer had instructions. Mr Henry advised me Mr Slater was no longer capable of working, has extensive legal fees outstanding and had voluntarily applied to be adjudicated bankrupt."
At that time Justice Palmer asked Henry to continue as counsel assisting the court, which he did. In March the lawyer asked again about his status but was told he had not been given leave to withdraw. The judgment says: "I indicated I was prepared to grant leave to withdraw pending only progressing issues around appointment of a litigation guardian."
Then in late March, Henry revealed he still had "a measure of instruction" from Slater on the plaintiffs' efforts to compel Slater to be kept in the proceedings.
Henry told the court "Slater had no ability to fund a defence of the proceeding and he had decided he would no longer participate in defending them when he applied for bankruptcy"... and "Slater had instructed he would not be seeking to appoint a litigation guardian and would not participate further in the proceeding on health grounds."
In April Justice Palmer decided there was no "medical evidence on the basis of which I could be satisfied Mr Slater was then incapacitated so that I could appoint a litigation guardian for him."
He terminated Henry's appointment as counsel assisting the court.
In May, Henry and his junior lawyer continued arguing "on behalf of Cameron Slater (bankrupt)" that their client could not longer be party to the proceeding as the Official Assignee had taken over his financial interests and the actual party now being sued should be Slater's bankrupt estate, not Slater.
"Mr Henry stated he had instructions from Mr Slater's family, because as a bankrupt he is not capable of directly engaging a solicitor, but he had no instructions from Mr Slater's bankrupt estate. He sought leave to withdraw because of that."
In June Henry filed a further memorandum with the court saying "no party is instructing him, no person is taking responsibility for his fees, he has no professional responsibility for the plaintiffs' issues, he is attending court and filing responses out of courtesy to the court and he renews his application for leave to withdraw."
Again at a hearing earlier this month, Henry said he "is making his submissions on behalf of Mr Slater personally on the basis of Mr Slater's instructions. He seeks leave to withdraw from acting for the first defendant because the first defendant is Mr Slater's bankrupt estate, on behalf of which he is not instructed."
However he told Justice Palmer if that was not accepted, he would want to respond to the plaintiff's application next week "on behalf of Mr Slater in person."
The judge regarded Henry's arguments about the different legal personalities of a bankrupt and the bankrupt's estate as "a nice academic issue" but decided "I would expect a bankrupt continues to be personally responsible for the discharge of duties in legal proceedings which are purely personal in nature and unrelated to any property interest of the bankrupt" and "no further argument is required."
He said his earlier order to continue the case meant Slater had to comply with the court's directions - and if that "was not sufficiently implicit... I now make it explicit". He asked the Official Assignee to provide any information that its office held before the court hearing next week.
As for Henry, Justice Palmer ruled: "I assume his previously expressed request for leave to withdraw as Mr Slater's counsel does not apply to the plaintiffs' application to compel compliance or sanction for contempt, to be heard on July 26, 2019. If it does apply to that, I decline to grant leave to withdraw. Neither do I appoint him as counsel assisting the court. Mr Slater's legal representation appears to be important to resolution of this issue."