New Zealand Law Society - The parlous state of civil access to justice in New Zealand

The parlous state of civil access to justice in New Zealand

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There were 17,000 civil court cases disposed of in the year to 30 June 2017 (14,588 in the District Court and 2,370 in the High Court). In too many of those, one or both parties were legally unrepresented. Employment Relations Authority figures, as a guide, indicate self-representation of applicants at time of filing ranges from 19.7% to 26.1% over the years 2015-2018.

Civil parties may well have an entitlement to legal aid but few lawyers are providing such services. Figures supplied under the Official Information Act indicate that for the period 1 July 2017 to 13 June 2018 there may have been 464 listed civil lead providers nationally (including employment and ACC lawyers) but only 35 were doing five or more cases in that period. This ties in with some research in the Auckland and Otago areas published by the University of Otago Legal Issues Centre this year – under Research/Current Projects.

Reasons for the poor take-up by lawyers of civil legal aid work range from the amount of work required to establish financial or merits eligibility (especially if there are companies or trusts, which do not generally qualify at all) and demonstrating that the case is cost-effective, to the unrealistic number of hours that are approved, the effect of fixed fees in some cases, and the low hourly rates which are involved when there is private work available paying double or triple those rates. Also, the taking of a civil legal aid case involves commitment to a substantial portion of unpaid work dealing with legal aid administrators over issues such as caveat or land charge authorisation and repayment. The Ministry of Justice points out that only 1% of legal aid grants are civil, but is that because there is no demand or because there is no supply?

Legal aid in client interests

It is in the client’s interests to have legal aid owing to section 45 of the Legal Services Act providing a general costs protection if losing. This will also save him or her from an application for security for costs most of the time: O’Malley v Garden City Helicopters Ltd (1994) 8 PRNZ 182 as explained at [7] to [13] of Barron v Hutton (2013) 21 PRNZ 528 for the current legislation. There is a duty to draw potential legal aid eligibility to your client’s attention under chapter 9.5 of the Client Care Rules but few must be stating in the affirmative the second part of this as to whether or not the lawyer is prepared to work on legally aided matters. For it is increasingly difficult to find suitable lawyers who are prepared to act on legal aid terms. Liberalising the use of McKenzie friends, as occurred in Craig v Slater [2017] NZHC 874 to allow the use of a qualified barrister, is not a sustainable solution.

In the area of ACC provision, there are very few lawyers operating at all, perhaps a dozen lawyers or firms who regularly represent clients in this area nationwide. This was pointed out as a serious shortcoming in the 2015 report from Acclaim Otago and the University of Otago Legal Issues Centre – (which can be found on the website under “News and Events”).

Self-represented parties

When a client is self-represented, the judge is required to intervene to ensure a fair process. However, the judge is not able to be there when the preparation work is done. The briefs or the affidavits may be lacking in detail or clarity. The evidence given in the witness box by the unrepresented party and his or her witnesses may not be structured properly. The witnesses may not have been prepared for how to answer cross-examination. An unrepresented party’s ability to cross-examine the other side’s witnesses will be compromised and it will take longer. All those involved in the process will become frustrated and during the course of that, there is room for error to creep in and for miscarriages of justice to arise. Limitations on the efficacy of judicial help of litigants in person were noted by Palmer J at [13] and [14] of Low Volume Vehicle Technical Association Inc v Brett [2017] NZHC 3281.

A good case presented badly can lead to even a well-meaning and experienced judge not appreciating what is involved. Also, an unrepresented party will have difficulty with pleadings, evidence and interlocutory steps. He or she will come across as less organised and confident, which will have an effect on the quality of justice. As was said, for example, by the Court of Appeal in Robertson v ASB Bank Ltd [2014] NZCA 597, at [11b]: “not infrequently, lay litigants do not realise the importance of evidence that has not been put before the Court. Further, it is self-evident the Judges do not know what relevant evidence may exist.”

These things matter because results which are not consistent with justice tend to undermine the rule of law, generally, and in the individual case. Litigants will nurse their grievances for a long period of time. This may affect their health or relationships in the future. The reputation of the court will also be affected if it is seen to preside over unjust outcomes.

Generally, the community will see justice as the preserve of the well-off. That will have an insidious effect on the ties which bind society and resolution of disputes, with people walking away from their disputes or settling too low out of despair or, instead, taking the law into their own hands.

So, the answer is to encourage civil legal aid by trimming bureaucracy and improving conditions and rates so that cases which are the lifeblood of society may see the light of day and the courts will then continue to be an important safety valve for the pressures experienced by individuals who find themselves in disputes.

Steven Zindel has run his Nelson firm Zindels since the end of 1994.

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