Problems seen with any changes to company representation in court
The New Zealand Law Society has identified a number of problems which would arise if there was a revision of the current requirement for companies to be represented in court by lawyers.
The Law Society has released its comments to the Rules Committee of the Auckland High Court on a proposal by Justice Chambers to revisit the rule that companies must be represented in court by lawyers. The rule was set by the Court of Appeal in a 1984 case.
The proposal would allow a company which is party to a proceeding to apply for leave to file pleadings by an authorised agent (without a solicitor on record). A company would also be able to apply for an “authorised advocate” to appear at the trial or hearing of the proceeding. Judges would be required to grant such an application except in limited, defined circumstances.
The Law Society’s comments note that the current rule is as applicable today as it was when made in 1984. It says the policy considerations are even more relevant to modern times and the rigours imposed by the effective management of litigation.
“While other jurisdictions have legislation, there does not appear to have been any call for the rule to be relaxed in the manner suggested in the proposal.”
The Law Society says that allowing a company to represent itself as of right in Court proceedings would create an imbalance between parties as there would be no consistency of ethical and professional obligations.
“The controls in place to ensure a fair hearing would be at the mercy of the company representative’s understanding of court procedure and confidentiality,” the Society says.
“The Law Society considers that the interests of justice outweigh any potential unfairness to a small one-person company. The wider public interest in ensuring the effective, efficient and expeditious disposal of litigation outweighs the practical problem of assisting under-resourced litigants. To the extent that there is a significant issue regarding under-resourced companies, consideration should be given to adjusting the legal aid regime.”
The Law Society says the proposal lacks the proper safeguards of more limited provisions which are in place in some jurisdictions. It says that it is a matter which should be addressed by Parliament with full debate, and should not proceed by way of the High Court’s rule-making power.