Simon Foote recently appeared for the New Zealand Bar Association in the Supreme Court on the vexed issue of how the High Court costs regime applies to three classes of litigants: lawyer-litigants, in-house counsel / employed lawyers, and litigants-in-person. In its judgment released 27 November 2018, the Supreme Court overturned earlier decisions of the Court of Appeal refusing to grant costs to lawyer-litigants who self-represent in Court on the basis that they did not render invoices for costs actually incurred. In doing so, it also preserved the established basis for in-house lawyers to claim costs in court proceedings.
The majority judgment also referred to policy reasons that may justify the extension of party and party costs awards to litigants in person. The United Kingdom and Canada have followed this course. Ellen France J, who concurred but with separate reasons to the majority, expressly found that there is no rational basis for distinguishing between a self represented lawyer who can claim costs, and a litigant-in-person who currently cannot. The Court indicated that this issue should be referred to the Rules Committee or Parliament for their consideration.
A copy of the judgment can be found here.