New Zealand Law Society - Civil court delays compromising access to justice

Civil court delays compromising access to justice

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People are becoming litigants in person because they cannot afford the cost of civil proceedings, recent research by the University of Otago Legal Issues Centre shows.

“The average person can’t fund a case. It’s not unusual for the cost of cases to get to over $100,000 for an uncertain outcome,” says Professor Mark Henaghan, Dean of Law at Otago University.

“I have heard of cases in the High Court involving estates, where the lawyers’ bill alone is more than a million dollars. It costs $6,000 just to file a case.

“If only certain sections of society can use these processes, are they justifiable?” he asks. “There are real issues here around access to justice.”

Professor Henaghan is leading an Otago University research team that will tackle this issue in a two-year study of patterns of timeliness in civil High Court cases, funded by the Law Foundation.

The study, the first large-scale project of its kind in New Zealand, aims to find reasons for the delays and to present possible solutions.

“We will be focusing on whether there are any commonalities in those cases that take a long time? Is it just because of their complexity, or is it about difficulty in accessing information?”

Professor Henaghan led a 2011 preliminary study by Otago University’s Legal Issues Centre (also funded by the Law Foundation) which found that 84% of civil proceedings were resolved before being allocated a hearing date – and the remaining 16% of cases took an average of 608 days to resolve.

“There’s a perception that the longer cases go, the more likely they are to settle. It’s a tactic used by some lawyers to draw out the proceedings.

Delay is part of what we do

“When you talk to lawyers informally, they say delay is part of what we do. We need to know if that is a major causal factor and, if so, we may need to look at changing the rules of procedure.”

Professor Henaghan says there are conflicting pressures within the system – Attorney-General Chris Finlayson has said that the financial and emotional toll of delay, cost and the effect of vexatious litigation in the civil justice system “cannot be overstated” and “has the power to destroy lives”.

Conversely, lawyers and judges have argued that efficiency should not be over-emphasised at the cost of justice.

“Justice through the courts requires a fair result to be reached through a fair process. This is challenging to measure. There’s a tension between that and timeliness – what is timely is open to argument,” Professor Henaghan says.

“What cases take longer? There may be all sorts of explanations, a range of factors. And what types of litigants use the civil courts? All we know, from the 2011 study, is that 16% of cases are in there quite a long time.”

The research team is based in the Legal Issues Centre at Otago Law Faculty and includes Lisa Davis and Dr Saskia Righarts. The first phase of their study will examine all 3,307 civil cases disposed of in the year to 30 June 2015, to identify how long case progression takes and where, if anywhere, the process stalls.

Second phase

The second phase will closely examine selected files that have taken an unusually long time to resolve, to try and ascertain what happens with different types of litigants and what makes civil cases take longer than other cases.

The Ministry of Justice is facilitating access to these files under a memorandum of understanding between the Ministry and the Law Foundation.

“We will go through the cases, then have intensive interviews with lawyers, judges and others. We are trying to find out from the files themselves whether there is consistency,” Professor Henaghan says.

He expects that the project will recommend changes, in particular to deal with delays to progressing civil cases.

“There should be timelines,” he says. “You can’t allow the argument that it’s important for justice that you have limitless time. At what point do you say that justice is being compromised and the time is unreasonable and avoidable?

“There comes a point where you have got to balance efficiency and obtaining information. There can’t be an open-ended chequebook to keep these things going forever.”

Other projects of interest

The Law Foundation board has recently approved funding for two other projects that could lead to beneficial change for lawyers and their clients.

Retaining graduates in the legal profession responds to concerns expressed by employers and legal bodies about talented legal graduates leaving the profession.

Josh Pemberton, currently a Supreme Court clerk, will carry out a survey and interviews with graduates who have worked in law for between six months and three years, to learn about their experiences and identify issues that are driving young lawyers to leave.

The results will be published in LawTalk and other outlets.

One Judge, One Family will explore redesigning the District Court, Youth Court and Family Court so that a single judge is assigned to each family, regardless of the issue before the court.

The researcher, Zoe Lawton, says New Zealand has among the highest rates of intimate partner and family violence rates in the developed world.

Currently, most criminal charges and Family Court applications are dealt with by different judges, so each judge may not be familiar with the full circumstances, and case resolution may be inconsistent as a result.

Ms Lawton says her project will explore a new and innovative case management system that may reduce this fragmentation and deliver better outcomes in family violence cases. Her research will include study in Israel, which has a one judge/one family system.

For more information about the Law Foundation’s funded research visit our website

Lynda Hagen is the Executive Director of the New Zealand Law Foundation.

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