Court of Appeal upholds ruling solicitor was not negligent in rest home case

The Court upheld the High Court ruling. Photo / File

The Court of Appeal has upheld a ruling that solicitor George Swanepoel was not negligent in handling a case over unpaid rest home fees.

The High Court ruled last year that barrister Andrew Holgate was negligent in his handling of Chris and Mary Gillibrand's case, but fellow lawyer Swanepoel was not.

The Northland-based Gillibrands first consulted lawyer Swanepoel in 2009, when they fell behind on rest home bills for Chris' father Gordon.

Holgate began working on the case in 2012, initially as cover while Swanepoel was on leave, then continued as the Gillibrands wanted him to continue working for them.

Judges Miller, Cooper and Winkelmann found Swanepoel was unaware of many of Holgate's actions, which included comparing conditions at the rest home to Auschwitz in a letter to Bupa's lawyer.

"The [High Court] Judge found, as we have noted, that Mr Holgate embarked on his litigation strategy without telling Mr Swanepoel.

"We have not been persuaded that his findings about that were wrong.

"It is clear that Mr Holgate took instructions direct from the Gillibrands, who preferred it that way, and filed papers under Mr Swanepoel's name without consulting Mr Swanepoel."

The letter which likened the Bupa home to Auschwitz was shown to Swanepoel by a typist, and the concentration camp reference was taken out.

"Mr Swanepoel remonstrated with Mr Holgate and that reference, which Mr Holgate put down to humour, was removed."

Holgate had already sent an email to Bupa's lawyer, referring to the company as "that blood-sucking client of yours".

According to the judgement, "when Mr Swanepoel saw it he rang Chris and expressed his concern but was told that Chris was happy with it".

The Gillibrands alleged Holgate and Swanepoel did not warn them the allegations required more evidence, and costs could be awarded against them.

The mistreatment allegations, the judges wrote, came from another Bupa client's report of "seeing Gordon sitting by an open window in some distress".

"The Gillibrands' losses were said to have resulted from the negligence of solicitor and counsel in two respects: the claim that the estate could not pay, and the attempt to defend Bupa's claim by alleging mistreatment of Gordon."

Holgate filed the allegation in court papers opposing Chris' removal as executor that Gordon had died due to Bupa's negligence, or his death was brought forward due to ill-treatment. The court found he did not consult Swanepoel.

Holgate went to the media shortly after this, emailing the Northern Advocate with mistreatment allegations. Swanepoel was not consulted.

The judges found that Swanepoel did what was required of him in the Gillibrands' case.

"We do not accept that Mr Swanepoel was required to do more than he did in the circumstances. He warned the Gillibrands he disagreed with Mr Holgate's strategy and they demurred."

Bupa sought unpaid fees from the Gillibrands as they owed money to Gordon, and then his estate after his death in 2011.

Gordon Gillibrand sold the couple his Dargaville farm, advancing the whole sale price of $505,000 to Chris and Mary's trust as a loan, after suffering a stroke in 2003 and going into full-time care at a Bupa rest home.

Gordon paid the rest home fees at first, until he ran out of money late in 2004. The Trust then paid the fees until 2009.

In March 2010, the Trust's financial statements recorded a debt of $355,00 remaining - the original sum less $150,000 paid in rest home fees.

When Gordon died in 2011, his estate owed nearly $45,000 to Bupa in unpaid rest home fees, and more than $8000 to a lawyer engaged on Gordon's behalf.