Kicking the can down the road

Why is the Crown fighting a court case it knows it is very unlikely to win? Because doing so stops it from having to face cases it really would prefer not to deal with.

[Update: see important revisory note at post's end!]

Back in September I wrote this post about a Supreme Court decision that found quite a number of prisoners have been unlawfully detained because The Department of Corrections incorrectly had calculated their release dates. In it I gloomily speculated on the chances of the Government stepping in and legislating to validate such detentions in order to avoid any liability to pay damages to the prisoners involved.

Well, that may yet happen. But before it does, the Government has found another way to kick this particular can down the road by fighting its basic liability to pay damages through the court system. Not, I think, because it believes it has any real chance of being successful in its legal arguments, but rather because the delay and cost involved in doing so will have the effect of burning off a number of prisoners who otherwise might be minded to seek damages from it.

Here's what the Government (or, rather, "the Crown") is arguing. It is saying that when the Department of Corrections calculated the relevant prisoner release dates, it did so in line with an earlier Court of Appeal ruling. So at the time of its calculations, Corrections was just doing what the judiciary had told it was lawful.

Then the Supreme Court came along and decided that the Court of Appeal was wrong in its earlier interpretation of the law. So Corrections also, it turns out, was wrong in terms of what the law says about release dates (even though it was doing what the Court of Appeal told it to do). And if you imprison someone without the law saying you are allowed to, then you are liable to pay damages as a result.

Corrections is now effectively complaining that this outcome simply isn't fair. It shouldn't be liable when it in good faith did what the courts said it ought to do, even if a higher court later says that this was wrong. In other words, the Supreme Court's ruling should have prospective effect only - it should work to change the release dates of future prisoners, but not give rise to any liability for past wrongful imprisonment actions.

That argument is somewhat adventurous, to put it mildly. It has been unanimously rejected by the UK's House of Lords in a case that exactly mirrors New Zealand's situation. And any unfairness in the result isn't peculiar to the Department of Corrections alone, as I noted in my previous post:

If that seems unreasonably harsh for the Department of Corrections, note that it's how things work for everyone. Let's imagine you're in a legal dispute with someone over, say, a contract. You ask your lawyer what you ought to do, and she tells you that the courts clearly have said that you are entitled to cancel the contract without paying damages. So you do so, get sued and win your case at first instance ... only for a higher court to then turn around and overrule those past interpretations of the law. The fact you acted on what your lawyer (correctly) told you the courts had said was the law at the time you acted doesn't release you from liability for breaching the contract based on what the higher court now says the law is - you'll have to pay damages for doing so. 

That's simply how our legal process works ... when a higher court overrules a lower court's past interpretation of the law, it changes not only what that law will be in future, but what that law always was in the past. Because the law both is and was what the higher court in the juridical hierarchy now says it is.

So unsurprisingly, we today get the news that the High Court has rejected the Crown's claim that the Supreme Court's judgment should only be taken to have prospective effect. Which means that any prisoners affected by the Supreme Court's decision - any prisoners who were kept in jail for longer than we now know they ought to have been - can commence proceedings to obtain damages through the courts.

Unless, of course, the Crown now decides to appeal the High Court's ruling. Not because it thinks it could actually win the case - like I say, both extremely persuasive overseas precedent and our entire understanding of how court judgments work tell against this. Rather, because a Court of Appeal hearing and judgment will eat up another few months of time - after which there's always the Supreme Court itself to try.

And only then will any ex-prisoners still within the statute of limitations be able to seek compensation through the court system ... by which time this particular can is a long, long way down the road.

[Update: Someone who knows a bit more about this than I obviously do has suggested the following to me, which I think important to share:

I will note that, as yet, the Crown has not engaged in any poor conduct in the case. Spending a couple of hours opposing an application for summary judgment is pretty low on the lawfare scale. The quantum of compensation sought is also being pursued on the basis that Manga v Attorney General was was incorrectly decided, so their decision not to settle is understandable.

So I'll (partially) withdraw and apologise for now, while retaining my right to vent again if the Crown appeals this decision.]