Litigation, Wilson Harle updates

New Zealand

Contributed by Wilson Harle
Supreme Court decision seen as warning for litigation funders
  • New Zealand
  • February 06 2018

The Supreme Court recently issued a somewhat controversial decision of significance in the area of litigation funding. The decision contains guidance on the key question of whether a funding agreement amounted to an impermissible assignment of a bare cause of action that would constitute trafficking in litigation. It remains to be seen whether, and to what extent, the decision may be used by defendants seeking to challenge funding agreements.

Amendments to Evidence Act for civil litigators
  • New Zealand
  • December 12 2017

The Evidence Amendment Act 2016 came into force in January 2017 and is the fourth and most substantial amendment to the Evidence Act since its introduction in 2006. Most of the amendments relate to evidence in criminal proceedings. However, several amendments are relevant to civil proceedings. The amendments relate to the definitions relevant to the application of privilege, legal advice privilege, settlement privilege, prior consistent statements and the prohibition on using previous decisions as evidence.

Supreme Court enforces 'use it or lose it' trademark rule
  • New Zealand
  • October 17 2017

The Supreme Court recently clarified the law applicable to unused registered trademarks in New Zealand and limited the scope of protection afforded to trademarks under the Trademarks Act 2002. The decision will affect companies which have sought to expand the protection available under the act by acquiring, but not actually using, trademarks that resemble their own purely to prevent other traders from using them.

Court of Appeal sheds light on new approach to penalties in Torchlight decision
  • New Zealand
  • September 12 2017

The New Zealand Court of Appeal recently had to determine whether late payment fees of A$28 million on a 60-day loan of A$37 million were an unenforceable penalty according to the law of New South Wales, Australia, which was the law of the contract. Although the judgment addresses the law of New South Wales, it offers some insight into the New Zealand court's view of recent international developments on penalties.

Substantial security for costs ordered for third-party funded claims
  • New Zealand
  • September 05 2017

The High Court recently ordered that a substantial amount be provided as security for costs by a litigation funder in relation to claims brought against seven defendants. The fact that the litigation was being funded by a third party was a significant consideration in the determination that the plaintiff could not pay costs itself and the exercise of the court's discretion to order that security be provided.

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