I attributed blame both to the Judiciary and to the legal profession. To the former because of its influence on the Rules Committee which has led to the expansion of technical, detailed and prescriptive procedural requirements that have increased the costs of litigation. I singled out, as I and many other members of the Senior Bar have for many years, the introduction of written briefs and the mandatory filing of prior written submissions and memoranda, even in respect of relatively minor interlocutory matters and Judicial mentions and conferences. But there are many other instances.
In respect of the latter, I blamed the profession for its adherence to hourly rates, which reward inefficiency, and flout common sense in terms of charging fees based on the amount at stake in the litigation.
The Winklemann paper, Frances Joychild’s sobering reporting of facts in South Auckland which include gang members being hired to collect debts (whether disputed or not) rather than using the District Court facility, and my more modest commentary in this column last month have provoked an interesting and thoughtful article in this week’s LawNews by Graham Hill, a Blenheim barrister. He rightly describes the Rule of Law as being a vital component of human and civil society but says that the impoverishment of the middle class has impacted its effectiveness in terms of access to Justice. He also rightly describes the reversion from the 2009 District Court Rules (“information capsules” I think they were called) to the older simpler form of notice of proceeding and statement of claim as “a big step back to efficiency”. As he said: “Sloppy, fudged and throw-away allegations wasted time under the 2009 procedure”.
I also received a response from a young lawyer to my earlier comments on the subject of Court filing fees. He asked the question why should we pay a second time to use the court facilities when we have already paid for them? Our taxes have paid for both a Police force and Courts to uphold the Rule of Law, whether we ask the Police for help in a particular case or not. Surely the same is true of the Courts.
In thinking further about these issues, I recalled a paper I had presented to the joint conference put on by the New Zealand Bar Association and the Legal Research Foundation 7 years ago under the provocative title “Civil Litigation in Crisis – What Crisis?”. It was interesting for me, if for no one else, to read what I said then. In essence, I referred to:
- The proliferation of paper and electronic communications and records that have issued huge challenges for the handling of discovery and documentary evidence at trial;
- The erosion of the hall mark of the adversary system, namely oral argument and witness testimony, which remains but with a huge and costly overlay of written briefs of evidence and mandatory filing of legal submissions in advance of the hearing;
- The lack of focus on the essential issues of a case, which has been exacerbated by the move to writing;
- The time and cost involved in getting through the interlocutory steps leading up to trial – which I referred to as “the growth of interlocutory warfare, the weapons for which are not guns but paper”, with some lawyers taking a “no prisoners” approach to resolving interlocutory disputes;
- The unprincipled conduct of much mediation that leads to unjust settlements that litigants are pressured to accept;
- The increased complexity of the Rules of Court which impede, not aid, efficiency and add to cost and which have contributed largely to the problem of front-end loading of litigation costs;
- The failure to tailor court processes to suit particular cases and the impact that can have on the expenditure of unnecessary costs;
- The failure to insist on confining evidence to what is relevant, as determined by the pleadings, and thereby adding to the length and cost of trials;
- The costs of case management where filing memoranda is mandatory;
- The hourly rate form of charging (condoned by clients) and the disconnect between that and the nature of the case and amount at stake;
- The costs of appeals, exacerbated by the fact that we now have a readily accessible Supreme Court (in which however the majority of applicants for leave to appeal are unrepresented, presumably because by that point in the litigation they have run out of money);
- The delays in the delivery of Judgments, which apart from the cost to the litigants also casts doubt on the efficiency of the process and the efficacy of the hearing where the writing of the Judgment is delayed for months;
- The excessive use of expert witnesses who sometimes are duplicating the lawyer’s job of presenting submissions disguised as testimony;
- The lack of formal specialisation in the High Court, particularly in relation to commercial causes.
At the “Crisis” conference, thoughtful papers were presented by Sir Gavin Lightman, former head of the Chancery Division of the High Court of England and Wales, and by Sir John Hansen, raising the question of whether the time had come to move from the purely adversarial system, where the Judge sat as the impartial umpire and left it entirely (or almost entirely) to counsel to unfold the case, to a more inquisitorial system.
In my paper, I advocated retention of the adversary system with its feature of open and transparent Justice and judicial impartiality to commend it. However, I did warn that if reforms were not made and the fundamental problem of the costs of litigation not effectively addressed, the adversary nature of court proceedings would come under serious attack. I expressed the view that the “more we move towards of forms of dispute resolution that are not on full public display, the harder it will be to maintain confidence in the judicial system”.
The statistics that Justice Winkelmann has provided as to the substantial increase in litigants who are unrepresented and the impact this is having on court hearings and on the role of the Judge serve to remind us that the time has come for action.
13 March 2015