The Rules Committee have now released the much anticipated Improving Access to Civil Justice report. Focused on the widening justice gap in New Zealand, a number of significant reforms to the Courts and Tribunal system have been proposed in a bid to address the financial, psychological and cultural/information barriers to accessing civil justice identified in the Report. The Committee's recommendations include:
- expanding the Disputes Tribunal's jurisdiction to hear disputes from the current limit of $30,000, up to $70,000 by right and $100,000 with the consent of both parties. The changes are likely to see increased activity in lower-value and single claimant disputes given the modest filing fees and relatively informal approach to determining issues. Contract, consumer law and certain tort claims which would previously have fallen within the District Court's jurisdiction, but abandoned due to factors such as costs, are more likely to be pursued. Corporates on the receiving end of such claims will, as usual, require company representatives to appear on their behalf given the prohibition on legal representation. However, the increased monetary limits provide an opportunity to push certain claims into this low cost and private forum;
- appointing part-time District Court judges from the pool of Kings Counsels and senior practitioners to assist with the court's civil workload. Adding depth to the bench through such appointments will not only allow parties to benefit from the extensive experience of those practitioners, but will give senior members of the profession an opportunity to develop their skills if looking to pursue a judicial appointment;
- introducing witness ('will say') statements in place of briefs of evidence. In a significant departure from the current practice, these will need to be served shortly after the exchange of pleadings but prior to discovery and the judicial issues conference. It is intended that greater reliance will be placed on the parties' documents and chronologies and that discovery will be limited to the extent necessary and proportionate. For those looking to commence proceedings, decisions will need to be taken at an early stage (prior to filing claims) as to who will be called as a witness, the extent to which they are briefed and whether an initial document review needs to be undertaken. Those defending claims will need to keep a careful eye on when proceedings are apprehended and make a call as to when equivalent steps are taken. If the UK model is adopted, careful consideration will also need to be given to how these documents are prepared given the requirement in that jurisdiction to ask open questions in gathering the necessary evidence;
- disclosing known adverse documents (which contradict or materially damage the disclosing party's contention or version of events and/or support the opposing party's position) at the point of initial disclosure. While the actual formulation of any rule will be key, given the early stage at which this will be required (ie when pleadings are served) those commencing proceedings and/or defending them will need to give careful thought to how such documents can be identified and compliance with the rule achieved. Former employees may need to be approached at an early stage in relation to potentially commercially sensitive issues in order to determine whether the corporate is "aware" of such documents; and
- hearing interlocutory applications remotely with time limits as the standard course and on the papers in certain circumstances. While in many cases this may lead to greater efficiencies (for example, through avoiding the time and cost of travelling to court), it may also lead to a greater number of applications being filed including those not warranted. This was a concern raised during consultation by both the judiciary and certain members of the profession. It will therefore be interesting to see how the courts approach this rule given the ability to set aside the presumption in favour of in-person hearings.
A variety of other changes have also been proposed, including limiting the number of experts that parties can call, and entrenching COVID-19 practices such as electronic filing, document management and remote hearings.
Alternative Dispute Resolution's (ADR) role in facilitating access to justice
While focused on the role of traditional dispute resolution mechanisms, the Committee recognised the importance for any initiatives to have proper regard to the overall structure for civil dispute resolution in New Zealand. ADR is now a well-established pillar of that framework. The Report's silence in addressing it as a useful mechanism to achieve just outcomes in an efficient and proportionate manner highlights, however, a critical gap in the analysis.
Arbitrations represent a significant proportion of the dispute resolution mechanisms employed by parties. Recent data from The Inaugural Aotearoa New Zealand Arbitration Survey shows that Arbitrations are often more time and cost efficient compared to their court equivalents. Quite aside from these efficiencies, there are a variety of other ways in which arbitrations can assist with the access to justice issues that the Report grapples with, including leveraging its inherent flexibility to better suit the party and utilising low-cost arbitral routes (such as the NZIAC's fixed fee service). Looking beyond the horizon, the approach of the Victorian Courts provides an example of how proactive use of ADR can lead to better outcomes. Judges in that jurisdiction can and do refer parties to Arbitration (with their consent) in cases where a dispute needs to be resolved quickly, confidentiality may be a concern, flexibility would assist or where the amount claimed is small. This represents a further avenue which could be explored in promoting access to civil justice.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.