New Zealand Law Society - High Court delays resulting in obstacles to accessing justice, study shows

High Court delays resulting in obstacles to accessing justice, study shows

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A major research project into High Court civil cases has found that some cases in the court can take more than two years to conclude.

University of Otago researchers have investigated the length of High Court civil cases to examine if, and where, delays occurred. They also explored ways to improve the system.

Bridgette Toy-Cronin

The lead author of Wheels of Justice: Understanding the Pace of Civil High Court Cases and Director of the University of Otago Legal Issues Centre, Bridgette Toy-Cronin (right), was aided by Bridget Irvine, Kayla Stewart and Mark Henaghan. The study was conducted between 2014 and 2017, including Ministry of Justice data from 2014 and 2015.

Dr Toy-Cronin says delays in proceedings can result in key obstacles to accessing justice and creates both financial and psychological costs for the litigant. One litigant interviewed described this stress as a nightmare.

The study found that High Court cases concluded, on average, in just over six months (191 days). But one class of cases – general proceedings – took an average of 13 months.

However, 18% of general proceedings took more than two years. General proceedings were the longest class of cases and account for 29% of the High Court’s total caseload.

“Study participants agreed that most general proceedings should not exceed two years,” the study notes.

The research, which was co-funded by the New Zealand Law Foundation, analysed Ministry of Justice data, physical court files and interviews with lawyers, judges, court staff and litigants.

Dr Toy-Cronin says an important finding of the study was that overall length does not tell the full picture.

“You have to look much deeper to see what is really happening. It might be good that a case is short or it might be unjust, as it only ended because one party ran out of money. A long case might be bad for the litigants or there might be good reasons for the time passing, like waiting for remedial work to be done on a property.

“We have to be more sophisticated in thinking about what we want from the justice system. Speed is one important goal but so is fairness and justice and keeping down cost,” she says.

'Slow and cumbersome'

Andrew Beck, convenor of the New Zealand Law Society Civil Litigation and Tribunal Committee, says the report throws up few surprises.

"The delays are pretty well-known," he says.

"The one outcome in the report that is concerning is the general proceeding delays because that’s your standard type of case where people are trying to get a final decision. The report does highlight the discovery process which is very slow and cumbersome and that has a big impact on litigants.

"Nowadays, with electronic documents you can have thousands of emails being pored over, and they may not tell you very much."

The study found that delays are caused by a range of issues including a lack of judicial time to promptly hear fixtures and deliver judgments, the difficulty in getting all the participants – lawyers, experts, litigants – to coordinate their schedules, litigants engaging in strategic delay, or lawyers not being thoroughly prepared.

The researchers say potential solutions to the causes of delay include earlier identification of issues in dispute, greater inclusion of litigants earlier in the process, improving the timing and methods of eliciting witness evidence, considering judicial specialisation, protecting judgment-writing time, and harnessing the benefits of modern technology.

The researchers also recommend initiatives to lower or better plan the cost of legal representation, as legal expenses have a close but complex relationship with the pace of litigation.

Courts of New Zealand notes that, for 2016, the median waiting time to trial for general proceedings cases which were active (waiting time is measured from the date the case was deemed ready for hearing to the future hearing date) was 286 days compared with 314 days for the previous year.      

The Ministry of Justice has welcomed the release of the report.

Tania Ott, Director Senior Courts, says the research is in line with the ministry’s own analysis.

“While the Otago research confirms that the High Court’s handling of civil claims is very good, it has also highlighted the importance of everyone involved in a case – from the judiciary, registry staff and counsel for the parties – working together to ensure cases are dealt with in a timely manner.    

“The Ministry recognises being involved in the justice system can be a stressful experience regardless of whether it is a criminal case or a civil dispute. That’s why we’re committed to ensuring cases are managed in a timely way.”

Ms Ott says the research challenges some perceptions about the time it takes to dispose of cases.  

“The research has helpfully confirmed that just because one case takes longer than another does not mean it’s been delayed. Some cases are highly complex and it can take time before all the parties are ready to proceed. But there will always be room for improvement, and the research has highlighted some areas to focus on.”