At what price principle?
It is natural for people who feel they have been wronged by their employer to want to stand up for what they believe is right.
But sometimes a moral victory is as much as litigants in the employment sphere achieve as the costs of litigation far outweigh any compensation awarded. It can also take a very long time to achieve this vindication.
The recent costs judgment in Wiles v The Vice-Chancellor of the University of Auckland is a stark illustration of this reality.
In 2024 Associate Professor Siouxsie Wiles’ was successful in the Employment Court in her case against the University of Auckland. She was awarded $20,000 in compensation for humiliation and distress and in achieving various declarations upholding her claims.
At the heart of Wiles’ case was the University’s failure to protect her from public harassment arising out of her commentary during the COVID-19 pandemic. The Employment Court ultimately found that the University had breached its contractual, statutory, and collective obligations to her, including health and safety responsibilities and the duty of good faith.
But despite the positive outcome for Wiles, she had to wait four years for this legal vindication, and when the final costs decision was issued, it laid bare the harsh economics of litigation.
At the end of the matter, Wiles’ legal costs exceeded $550,000, and she sought roughly two-thirds of that amount, $349,450.67, from the University by way of a contribution towards her costs. In contrast, the University revealed that it had spent over $1.4 million in legal fees.
After weighing various factors, the Court ordered the University to pay costs to Wiles of $205,059.94, a significant amount but still far less than her actual costs.
This decision is a reasonably extreme example of the time and cost involved in pursuing litigation, even in a jurisdiction designed to be “accessible” and “low-cost”.
The Wiles case involved a three-week hearing, extensive pleadings, and multiple interlocutory (preliminary) issues. Wiles argued that the University had been unnecessarily aggressive and uncompromising in its approach.
Adding another layer of complexity was the existence of a “Calderbank offer” made by the University. Such offers amount to a confidential "without prejudice" proposal to settle and are designed to encourage early resolution and avoid the cost of a full trial.
If the offer is rejected and the party receives less from the court than what was on the table, the court may penalise them by refusing to award costs or even ordering them to pay the other side’s costs.
In this case, the Court accepted that Wiles’ rejection of the Calderbank offer was reasonable. She wasn’t just seeking compensation, she wanted declarations that the University had failed in its duties and recommendations to prevent similar harms in the future.
Her claims reflected a desire for accountability and systemic change, goals that often cannot be achieved through a financial settlement alone.
A party might reject a settlement or Calderbank offer in the belief that they are fighting for something more than money. But in doing so, they can take on enormous financial risk.
Courts can and do make allowances for these kinds of decisions, particularly where public interest or declaratory relief is sought, but often they cannot undo the financial toll entirely.
The University had deep pockets, Wiles did not. That imbalance is not uncommon, particularly in employment disputes, where the employer generally has access to greater resources than an individual employee.
So, this raises the question, at what price principle? In this case Wiles spent $550,000 to be awarded just $20,000, but was then reimbursed $205,059.94. She remained out of pocket by some $324,940.06. That is obviously a hefty price to pay for a principle, but Wiles would have presumably known this before deciding to sue the University and have gone in with her eyes open
For some, settling grievances, accountability, or systemic change may justify the emotional and financial cost. For others, a private settlement, even if imperfect, might offer a better path forward.
Calderbank offers can facilitate those settlements, but only when both parties are negotiating in good faith and where the terms align with the values and goals of the aggrieved party. In this case the Court noted that the offer made to Wiles did not contain any element of the public vindication that she was seeking.
Ultimately, what the Wiles case underscores is that the “price” of litigation is not just financial. It’s strategic, emotional, and reputational.
So, whilst the employment jurisdiction aims to be accessible, and litigation remains a crucial tool for upholding rights and accountability, litigants need to be realistic about its limitations and costs.
This case serves as a clear reminder that even a “win” can carry a price few are prepared to pay.
Originally published in The Post
