Access to justice
I noted the reported comments of New Zealand Law Society President Chris Moore concerning lack of justice and the rise of self-represented litigants.
I absolutely endorse your comments and as a lawyer practising in the Family Court with legal aid clients, I am increasingly concerned at the difficulty clients are finding in accessing legal aid lawyers.
Over the Christmas break I was appointed lawyer for two young children (separate cases) in which warrants had been issued for various reasons. In both cases, one party’s inability to find a lawyer led to urgent Court proceedings and involvement of police and social workers. Had each parent been able to obtain a lawyer, matters would have been sorted out relatively easily.
On another occasion, a client’s mother indicated she had phoned 16 firms before getting an appointment for her son to see one of my staff on a legal aid basis.
The tariffs for legal aid are too low and too difficult to meet and financial issues are a barrier.
The new Family Court reforms mean that access to lawyers is difficult and results in people filing proceedings where, had they the benefit of legal advice, simple and sensible negotiation could have ensued.
In family law cases there is inevitably high emotion which means that use of an objective voice of reason (the lawyer) is particularly important. Regrettably, the reforms seem to have cast lawyers as the catalyst for disputes rather than for finding a solution for the disputes.
I cannot talk with any authority about other jurisdictions, but Family Court where children are innocent victims, is a Court that people need access to urgently for the good of the family and society.
The Family Law Section of the Law Society worked very hard at the time the Family Court reforms were contemplated, and the accuracy of their predictions as to what would happen is significant.
I urge the Law Society to keep pressure on the government as the significant number of children experiencing prolonged conflict when their parents are embroiled in disputes, is detrimental to their emotional health and therefore the emotional health of the nation.
If the government is truly committed to placing children’s needs as a priority, access to legal advice in the family law context is imperative.
Legal aid top-ups
As one of those few civil legal aid lawyers that Chris Patterson wrote about, I’ve tried to get s 105 Legal Services Act 2011 approval for a fee top-up to a low legal aid grant a number of times but also without success.
Floodgates reasoning, I suppose. But as far as Chris’ fiscally neutral (for the government) suggestion about making the amount of the top-up equal the additional costs that might be awarded above the legal aid repayment, there is a Catch-22 aspect. The amount of any top-up authorised by the Ministry of Justice would likely be conditional on payment by the losing party of a higher costs order.
The applicant’s incurred costs, however, would surely be those that are unconditional and the applicant could not claim more than those under rule 14.2 (f) of the High Court Rules or District Court Rules.
The applicant, in short, could only claim more for costs if there were a court order for more costs!
A court might not wish to make a conditional costs order on legal aid making a higher grant and legal aid, in turn, would not like to do this without seeing the losing party pay the costs first.
So, if the applicant has a $4,000 legal aid repayment and you could get $7,000 for scale costs typically, you could ask for a $3,000 top-up but legal aid would say that the $7,000 hasn’t been ordered, still less received yet, to repay them and so wouldn’t make the decision and the court would then have to confine the costs order to those costs actually incurred, being the $4,000 legal aid repayment!
I note from “News Points” in LawTalk 881 (12 February 2016, p 4) that, on the Transparency International’s 2015 Corruption Index, New Zealand has fallen again and that the country now holds fourth place, whereas prior to 2014 (and for 7 successive years) it was ranked as first in the world, ie the least corrupt.
The 2015 Rule of Law Index, which came out in June 2015, showed a similar concerning slide in New Zealand’s position on the “Absence of Corruption” Index – from first in 2011 to sixth in 2015.
I commented on that latter Index in LawTalk 868 (3 July 2015), describing New Zealand’s fall as “disquieting”. And so it is – with the Transparency International’s findings corroborating the earlier Rule of Law assessment.
Not only is there “no cause for complacency” as I wrote earlier, but there is very real cause for concern.
I know full well from my own experiences with, and for, the International Criminal Court, just how important New Zealand’s corrupt free reputation is to other people, institutions and countries. It plays a very important part in how New Zealand is perceived and received in international fora of all kinds. The country cannot afford, should not allow, a continuing decline in this area.
And, as a profession, we have a role in trying to put a stop to this slide.
Nigel Hampton QC
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