Introduction of the concept of a "minor defendant" is misconceived and should not be adopted, the New Zealand Law Society says, pointing to further delay, cost, complexity and uncertainty if it were introduced.
The Law Society has provided comments to the Ministry of Justice on the provision of relief for minor defendants as recommended in the Law Commission's Report on Liability of Multiple Defendants.
The comments were requested by the ministry after it was directed to carry out further work on the Law Commission recommendations for the courts to have discretion to relieve a minor defendant from the full effects of joint and several liability if the result would otherwise be unduly harsh/unjust.
The proposal was not subject to public consultation.
The Law Society says the Law Commission proposes a two-stage process for a minor defendant to seek relief. It notes that no clear standard is proposed which is to be applied by the court on a pre-trial application and it is not clear how a plaintiff would be in a position to produce evidence of defendants' responsibility relative to other defendants.
After identifying several practical concerns, the Law Society says the proposal would add significantly to the cost and complexity of litigation, especially for plaintiffs, and how long it takes.
"Litigation is already very slow, complex and expensive. This is especially so for plaintiffs in multi-defendant matters," it says.
"Given the already high cost of litigation for plaintiffs in multiple defendant cases, the law should be slow to impose further costs in the absence of a clear and pressing case for reform. The Law Society does not consider that there is such a case."