Nottingham application for recall dismissed by Court of Appeal

Another in long list of failures by Dermot Nottingham with the Court of Appeal dismissing an application for recall of an award of costs in a long running (since 2013) litigation versus Maltese Cat regarding claimed defamatory posts on the Lauda Finem website in 2013.

Nottingham was convicted in 2018 of criminal harassment and suppression breaches where he was found ‘by a wide margin’ to be ‘the driving force’ responsible for numerous posts on the Lauda Finem website.

[38] Identity (in the sense of responsibility for the acts either as principal or party) was therefore in issue on all charges. Again, Mr Nottingham’s position (both at trial and on appeal) was that there was no evidence of information being communicated from computers under his control to the LF website. And again, the Crown case was (and is) the evidence identifying him as the “driving force” behind the harassment was, if not overwhelming, certainly very strong.

[43] The weight to be given to all of these individual pieces of evidence was essentially a jury function. By a wide margin we conclude that on the issue of “identity”, Mr Nottingham fails to satisfy us that the jury’s verdict was unreasonable.

That’s from Nottingham’s failed appeal of conviction and sentence – NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]. He tried to appeal that decision inn the Supreme Court –  DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019] – but his application for leave to appeal was dismissed.

No question of general or public importance accordingly arises. Against that factual background, nor does anything raised by Mr Nottingham give rise to the appearance of a miscarriage of justice arising from the Court’s assessment.

Nottingham had argued that he wasn’t responsible, but also that the posts were true, so he was trying defend something he claimed there was no evidence he had done.

This is relevant to the Maltese Cat case because they are claiming Nottingham has some involvement in defamatory posts at Lauda Finem.

From NOTTINGHAM v MALTESE CAT LIMITED [2019] NZCA 641 [12 December 2019]

[1] The issue in this appeal is whether a defamation claim seeking declaratory relief and costs is a money claim for the purposes of s 11 of the Limitation Act 2010.

[2] The respondents brought the proceedings alleging that defamatory statements had been published about them on the website The host of the website, LLC, has advised that it is contractually entitled to take down defamatory, obscene or lewd material and will abide any order of this Court declaring publications on the website to fall into those categories.

[3] Mr Nottingham brought a number of interlocutory applications, including an application to strike out the proceeding on the ground that it was time barred. Rule 15.1 of the High Court Rules 2016 permits the court to strike out all or part of a pleading on specified grounds, including that it is an abuse of the process of the court.  In order to succeed on a strike-out application brought on the ground that the cause of action is statute-barred, the applicant must show that the claim is properly regarded as frivolous, vexatious or an abuse of process.  The threshold for striking out a pleading is a high one; the jurisdiction is to be exercised sparingly and only in clear cases and the cause of action must be clearly untenable.

[4] Fogarty J found that the proceedings were not time barred. Mr Nottingham appeals.

[9] The Judge considered that the limitation issue could be disposed of on the basis that the defence provided under s 11 on which Mr Nottingham relied was not available, because s 11 applies only to “money claim[s]” and the respondents were seeking only declaratory relief, which is not a money claim.

[11] On appeal, Mr Nottingham modified his argument in relation to s 11. He submitted that, because the statement of claim seeks costs (and indeed indemnity costs would likely be payable by virtue of s 24(2) of the Defamation Act 1992), as well as declaratory relief, the proceedings do constitute a “money claim” for the purposes of s 11 of the Limitation Act.

[12] Mr Nottingham also maintained the argument that the multiple publication rule should not apply and that the proceedings are time barred because they were filed more than two years after the first date of publication and the respondents had knowledge of the publication within that period.

[13] We consider that the Judge was right in his conclusion that the proceeding is not a money claim and that the fact costs are sought makes no difference.

[15] A claim for declaratory relief is clearly not a money claim for the purposes of s 11 and Mr Nottingham did not seek to argue otherwise. Nor is it tenable to argue that a claim for costs could, in itself, constitute a money claim. A claim for costs under the High Court Rules is essentially a claim for a contribution to litigation costs incurred, that being the basis upon which claims are allowed. It is well recognised, however, that proceedings cannot be brought where legal costs are the only relief sought. It is therefore self-evident that a claim for costs cannot transform a claim for declaratory relief, which is not a money claim, into a money claim.  We agree with Mr Connor’s point, for the respondents, that treating costs as a form of relief would have the potential to turn virtually every claim into a money claim for the purposes of the Limitation Act.

[16] Our conclusion that the proceeding in this matter is not a money claim means that whether the publication is to be treated as having occurred on the first day of publication or subsequently, under the multiple publication rule, cannot affect the respondents’ position. It is therefore unnecessary to consider the merits and application of that rule.

[17] Nor is it necessary to consider the other aspects of Mr Nottingham’s extensive written submissions, which rest on factual matters not before the Court.

Nottingham has a history of “extensive written submissions” – often hundreds of pages, sometimes over a thousand – which ‘rest on matters not before the Court’, that is, irrelevant or inadmissible. A problem with this is that lawyers have to read all submissions just in case there is something of legal importance hidden in the dross. This takes time and costs clients money.

[18] The appeal is dismissed.

The latest judgment: Nottingham v Maltese Cat Limited [2020] NZCA 31 (28 February 2020)

[1] Mr Nottingham applied unsuccessfully in the High Court to strike out the respondents’ claim on the basis that it is time-barred. This Court dismissed Mr Nottingham’s appeal against that decision. Mr Nottingham was ordered to pay one set of costs for a standard appeal on a band A basis with usual disbursements. He has now applied for a recall of the judgment and a rehearing of the appeal on various issues.

[3] Mr Nottingham identifies five grounds for his application. They can be broadly summarised as follows:

(a) the costs awarded are punitive and unfair in the circumstances;

(b) in considering costs the Court failed to take into account allegations of perjury by the respondents and the merits of Mr Nottingham’s substantive argument;

(c) there were errors of law by the Court and bias by one of the panel;

(d) there is a history of this Court making decisions adverse to Mr Nottingham; and

(e) Mr Nottingham’s rights under the New Zealand Bill of Rights Act 1990, the International Covenant on Civil and Political Rights and the Declaration of the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms have not been observed.

[5] It is evident from Mr Nottingham’s memorandum that he wishes to reargue a number of matters that were argued at the hearing of the appeal and, moreover, seeks to have this Court take further steps to investigate factual matters in issue between the parties. None of the matters Mr Nottingham raises are within the category of cases appropriate for recall. Mr Nottingham’s proper course is to pursue the application for leave to appeal to the Supreme Court that he filed prior to making the present application.

[6] The respondents have sought costs on a band A basis in respect of this application. Mr Nottingham did not address the issue of costs in his memorandum. We grant costs on the basis sought.

So the application for a recall of a costs award has been dismissed, and further costs awarded against Nottingham.

Nottingham was adjudged bankrupt in 2018 largely due to hundreds of thousands of dollars of unpaid costs in a number of court proceedings (five failed private prosecutions, one against myself).

I think it’s fair to ask whether Nottingham is deliberately inflicting costs through repeated hopeless litigation in which he has no intention nor ability to pay costs.  This makes the risk of costs no deterrent, which puts targets of Nottingham’s prosecutions and appeals at a serious disadvantage. I don’t know if there is anything the courts can do about this, but they could do something about the leniency they have repeatedly given Nottingham over later and prolix filings and repeatedly failing to comply with court rules and timetables.

Nottingham is currently limited from starting new litigation as he is a bankrupt serving home detention and has a ban on Internet access.

But this Maltese Cat proceeding shows that if you only claim a statutory declaration and don’t claim damages there is no time bar. This leaves possible legal recourse to anyone who thinks they have been defamed by posts on Lauda Finem (including myself) to seek a declaration to try to get defamatory posts taken down.

Details from Nice

Details are becoming more clear in the aftermath of the attack by truck in Nice, France.

Summary (from BBC):

  • A lorry has ploughed through a crowd during Bastille Day celebrations in the southern French city of Nice
  • At least 84 people are dead, including 10 children
  • 202 were injured, 52 remain in critical condition, 25 are in intensive care
  • The driver of the lorry was shot dead by police
  • He has been identified as Mohamed Lahouaiej Bouhlel, known to police for violence and petty theft

More on the attacker: Nice attack: Lorry driver confirmed as Mohamed Lahouaiej-Bouhlel

The driver of a lorry that killed 84 people in an attack in the French city of Nice has been confirmed as Tunisian Mohamed Lahouaiej-Bouhlel, 31.

Prosecutor Francois Molins said Bouhlel had driven the lorry 2km (1.2 miles) along the Promenade des Anglais and fired at police before being shot dead.

Mr Molins said no group had admitted carrying out the attack but that it bore the hallmarks of jihadist terrorism.

Bouhlel drove the 19-tonne lorry into crowds celebrating Bastille Day at about 22:45 local time (20:45 GMT). He fired at officers with a 7.65mm calibre automatic pistol when the vehicle was close to the Negresco hotel and continued for another 300m, where his vehicle was stopped near the Palais de la Mediterranee hotel and he was shot dead.

Also found in the lorry were an ammunition magazine, a fake pistol, a replica Kalashnikov rifle, a replica M16 rifle and a dummy grenade.

There was also a bicycle, empty pallets, documents and a mobile phone. Items were later seized from Bouhlel’s Nice home.

Bouhlel, a chauffeur and delivery man, was “totally unknown to intelligence services… and was never flagged for signs of radicalisation”, Mr Molins said.

Tunisian security sources said Bouhlel had been married with three children and came from the Tunisian town of Msaken. He visited Tunisia frequently, the last time eight months ago.

Justice Minister Jean-Jacques Urvoas said the suspect had been given a suspended sentence in May following a confrontation with another driver but this was his only conviction.

Residents of his apartment building said he was a loner who did not respond when they said hello.

Bouhlel has caused many people extreme harm, he has generated terror in Nice, and whether he acted alone or not he has added to the fears of terror around the world, provoked shock, sadness and anger, and will cause millions of innocent people grief.

I hope that people in positions of state power don’t overreact and create a lot more innocent victims.

It should be remembered that so far only one person has been found to have been responsible for this atrocity in Nice.

UPDATE: Conflicting statements from French politicians.

French Prime Minister Manuel Valls…

…says Nice attacker was one way or the other linked to radical Islamist circles.

French Interior Minister Bernard Cazeneuve told French TV…

“We have an individual who was not known to intelligence services for activities linked to radical Islam”.  Asked if he could confirm the attacker’s motives were linked to jihadism, he said: “No”.


BBC’s Tunisia correspondent Rana Jawad caught up with Bouhlel’s father Monthir in Msaken:

“He took his treatment, his medicine, and we thought he was doing well – here’s the medical certificate. I took him to the psychologist, he followed his treatment but sometimes he would have nervous breakdowns and he would break everything and demolish everything. He has had a nervous problem and when he becomes nervous he breaks everything.  He had problems with his wife and I think that added to his mental health issues.”