Access to justice is about more than just legal representation, and the procedural rules of the courts can go a long way to supporting this. In fact, the very purpose of those rules is to facilitate the ‘just, speedy, and inexpensive dispatch of the business’ of the High Court, Court of Appeal and the Supreme Court.

Recently, the Rules Committee has been working on two major initiatives to improve access to civil justice:

• Review of the High Court Rules and District Court Rules, with a view to improving access to civil justice by reducing the costs of bringing a civil matter to court.
• Review of costs for lay-litigants, the current position being the litigants-in-person (i.e. self-represented) are prevented from obtaining a costs award.

Both projects have been open to the public and the profession for multiple rounds of consultation. The work is critical to increasing access to justice, providing fair and equitable treatment of litigants, maintaining fairness between successful and unsuccessful parties, and protecting the integrity of the justice system. The Law Society’s input on these important projects has been led by the Civil Litigation and Tribunals Committee.

What is the Rules Committee?

Picture a judicial Jedi High Council.

Established in 1908, the Rules Committee is a statutory body with responsibility for the procedural rules of the Supreme Court, Court of Appeal, High Court, and District Court. It is comprised of the Chief Justice, the Chief High Court Judge, the Chief District Court Judge, two judges of the High Court, a further District Court judge, the Attorney-General, Solicitor-General, Secretary for Justice, as well as two lawyer members nominated by the Law Society Council.

Reducing the costs of civil litigation

In 2019, in response to concern about an increasingly unmet need for civil justice, the Rules Committee embarked on a review of the High Court Rules and District Court Rules.

Initial consultation in 2019-20 revealed concern amongst submitters at the numerous barriers citizens encountered when seeking civil justice. Those barriers included the more obvious financial costs associated with legal representation and protracted proceedings, but also the impact of hearing and filing fees, and significant psychological, informational, and cultural barriers.

Following this initial consultation, the Rules Committee consulted on a series of proposed reforms, extending from rules-making through to legislative amendment. Broadly, the proposals included:

• Expanding the role of the Disputes Tribunal by increasing its jurisdiction to $50,000, potentially renaming it, and appointing existing investigators as lay members of the Tribunal where appropriate.
• Revitalising the District Court’s civil jurisdiction through the creation of a Principal Civil Judge responsible for improving the expertise of the Court’s civil registry and ensuring the availability of accessible information about court procedures. In addition, introducing part-time Deputy Judges with suitable civil expertise, and minor revisions to the District Court Rules to allow more inquisitorial and iterative processes, with fewer interlocutories.
• Streamlining procedure in the High Court, so that the existing procedural rules apply only to more complex cases. This would include replacing discovery with disclosure obligations, early issues conferences with substantive engagement by Judges, interlocutories dealt with on the papers, and a streamlined trial process placing much greater weight on the documentary record. Parties would have to justify the need for adopting more onerous obligations in a given case.

The Law Society has supported these proposals, in particular the aims of ensuring a right-sized approach to litigation and reducing both time and cost. It also drew attention to the need for clarity around the proposed ‘duty of candour’.

Litigants-in-person and costs awards

The costs regime can also be a barrier to accessing civil justice, the current position being that a successful litigant-in-person is entitled to recover disbursements, but not costs (the ‘primary rule’).

Putting aside a slight detour by the Court of Appeal in Joint Action Funding Ltd v Eichbaum [2018] 2 NZLR 70, the exception to this rule is the litigant-in-person who is also a lawyer: they can recover costs. This has been criticised, and for many there is no principled reason for treating lawyer litigants-in-person differently from other unrepresented litigants for costs purposes.

While course-correcting later that year in McGuire v Secretary of Justice [2018] NZSC 116, the Supreme Court would come to canvass the history of the primary rule, and ultimately criticise its present, ‘invidious’ position.

The Supreme Court stopped short of reform, noting this was more appropriately the role of Parliament or the Rules Committee. The Rules Committee responded, and in 2020 commenced consultation on potential amendments to the High Court Rules and District Court Rules. It asked whether the primary rule ought to be abrogated, and if so, how exactly costs for a litigant-in-person could be determined.

All submitters, including the Law Society, agreed there was no principled reason for treating lawyer litigants-in-person differently from other unrepresented litigants for costs purposes. Submissions differed, however, around the treatment of costs for employed (‘in-house’) lawyers.

Having obtained further advice, the Rules Committee is now consulting again, this time on preliminary decisions that:

• Litigants-in-person will be eligible for costs, and a new rate specified for recovery. It has proposed $500 per day.
• Lawyer litigants-in-person will be eligible to recover at the new rate, and not the full rate.
• There will be a new daily rate prescribed for in-house lawyers, proposed to be $1000 per day.

The future of civil litigation

The Rules Committee is currently considering the feedback received on its proposals for procedural change in the Disputes Tribunal, District Court, and High Court.

As for changes to the costs regime, consultation remains open until late January 2022. The Law Society intends to provide feedback on these proposals, ably assisted once more by the Civil Litigation and Tribunals Committee.