Lawyers and law firms have the opportunity to contribute to significant improvements in civil access to justice, particularly the operations of the District and High Courts.
Given the impact of COVID-19, the consultation period for submissions on the Rules Committee’s paper, Improving Access to Civil Justice, has been extended for community groups until 11 September 2020.
Incoming Chair of the Committee, Justice Francis Cooke, is calling for members of the profession to engage in improving access to civil justice through the proposals.
“We are considering unprecedented reforms to civil procedure to help close the growing civil ‘justice gap’, including moves away from an adversarial model.
“This is an opportunity for not only firms and other organisations, but also individual practitioners to have a meaningful say in what could be a significant reform of the civil justice system.”
Outlining why the Committee is consulting, Justice Cooke said “there is now a real appreciation that the civil justice system does not meet the needs of ordinary New Zealanders who simply cannot afford to take their dispute to the Courts. The Government has a policy of addressing that issue, and the Chief Justice has also taken a number of initiatives. If lawyers are genuinely interested in addressing the problem, now is the right time for them to do so.”
The Rules Committee has identified at least two related problems with the current civil justice system. The first is the now familiar ‘gap’ in the provision of civil justice. The second problem is the expense involved in bringing a civil proceeding in the High Court and the District Court.
The Disputes Tribunal only addresses claims up to $30,000. Over that limit, civil claims would be filed in the District Court, unless the thresholds for the High Court are reached or the dispute involves the jurisdiction of another tribunal. .
Litigating a defended civil claim worth less than $100,000 in the District Court is routinely considered to be uneconomic. In 2013-2018, only 4% of civil claims in the District Court were defended, only fraction of which went to trial. This suggests there is an unmet need for access to justice for litigants who cannot afford legal representation.
“It really is imperative that we find ways to allow members of the community meaningful access to a civil justice system,” says Justice Cooke. “The profession needs to understand just how significant these problems are. If they are not addressed litigation lawyers will find themselves with less and less work.”
The four main proposals set out in the Committee’s paper are to;
- introduce a short form trial process in the High Court, and modify the existing short trial process in the District Court;
- introduce an inquisitorial process for the resolution of certain claims in the High Court and District Court;
- require civil proceedings to begin with a summary judgment application; and
- streamlining standard pre-trial and trial processes (for example, by reducing the scope of discovery, and replacing briefs of evidence with “will say” statements).
Justice Cooke observed that the proposals vary from the traditional way that litigation is conducted. For example, the suggestion that all civil proceedings be commenced by a hearing similar in kind to a summary judgment application would involve the Court addressing the issues in the proceeding at the outset in a manner similar to its traditional role.
The proposal for an inquisitorial process, however, would be less traditional. “Some of us think that the inquisitorial processes are the way to go, but not everyone agrees, and it may involve Judges performing their function in a very different way. But it is necessary for us to consider even quite radical departures if the problem is to be addressed,” he said.
These proposals are not the complete extent of changes the Rules Committee is considering in this consultation.
“Other matters are being raised in the submissions we have received, and it is really important that we make a genuine attempt to fully consider all possibilities. Submitters are encouraged to be brave,” says Justice Cooke.
Submissions may be provided by email to Sebastian.Hartley@justice.govt.nz.
The Law Society’s views on the Rules Committee’s reform proposals
The Law Society's recent submission on the Rules Committee’s consultation paper is available from our Law Reform section.