James Farmer

LEGAL COMMENTARY

Covid and the New Zealand Rules Committee Proposed Reforms

Monday, January 24, 2022

Below is a piece that I wrote for LAWFUEL that was published on Tuesday 18 January.  The link between COVID and the Rules Committee proposals for reform of Court processes, aimed at improving access to Justice by reducing the cost of litigation, may not be obvious.  But it does seem to me that one major effect of Covid lockdowns and restrictions has been to reduce the time spent in the courtroom, which on one view might reduce cost.   The same purpose and effect would seem to underlie the current reform proposals of the Rules Committee relating to the most expensive form of litigation, namely the High Court.  

However, the thesis expounded below is that those proposals (if enacted), to the extent that they augment the vast amount of written material presently required to be filed in the Court (advance written submissions, briefs of evidence, bundles of documents, bundles of authorities) which are the result of earlier reforms, will add to cost and impede access to Justice even further.

Given the (in my view) expected failure of the reforms if and when enacted to achieve their stated purpose, the consequence can be expected to be a full on attack on the common law adversary system which will be blamed for all access to Justice problems.  That is already foreshadowed in the research paper commissioned by the Rules Committee into European inquisitorial modes of litigation referred to below.   My cautionary note is that any substantial move towards providing Judges with a significantly more extensive inquisitorial function may have unintended consequences both in terms of cost (of the system) and the perceived quality of Justice.  Such potential consequences warrant extensive prior debate before embarking down this track.

As an aside, when I was a postgraduate student at Cambridge I voluntarily attended a course of lectures given by Professor Jack Hamson of Trinity College that was focused on a comparison of the adversary system, as it existed in England, and the inquisitorial system as it existed in France in particular.  Hamson had been a prisoner of War in Crete for 4 years where he taught law to other prisoners, which did much to maintain morale.  In 1954, he delivered the Hamlyn lectures on the French Conseil d’Etat, which administered what was in effect a separate system of administrative law (droit administratif) from the ordinary courts and contrary therefore to the English concept of equality under law, as espoused by Professor A V Dicey in his famous work, The Law of the Constitution.  My recollection of his Cambridge course, which was outstanding for its simplicity of exposition, was that he was careful not to draw any stated conclusion as to the superiority of one mode of adjudication against the other but one was left with a feeling of preference for the adversary system, based on its greater control by the advocates for the litigants.


LITIGATION PRACTICE AFTER COVID AND POST-RULES COMMITTEE REFORMS – WILL IT BE DIFFERENT?  (As published in LAWFUEL)

The way that we practise law has certainly changed (at least for now) since Covid arrived in New Zealand with its ensuing lockdowns, border and provincial barriers, closed court buildings et al.   Zoom and Meets have become the norm for what used to be real meetings.   Virtual hearings have enabled the interlocutory phases of civil litigation to continue but the challenge to using that mode for trials has been a far greater one.  

More critically, the stay on criminal jury trials has built up a huge backlog that is inevitably destined to place the courts under huge pressure once they are able to resume.  The reconciliation of the objectives of protecting the health of court participants and staff on the one hand and the attainment of timely access to Justice has been said by the Chief Justice to have involved “working through complex legislative and operational issues, which takes time” [NZ Herald 11 January 2022]. Those are probably not reassuring words to defendants refused bail and detained in custody for long periods of time awaiting trial.  Fiona Guy Kidd QC, President of the Criminal Bar Association has also been reported as saying that it would take years to clear the case backlog and that, further: “Even when we get started, there’s limitations on the number of lawyers available to run trials, there’s limitations on rooms available for jury trials – especially with social distancing” [NZ Herald above].

Leaving that specific (but major) problem aside, I have been wondering whether in a post-Covid world the compromises that have been forced on us at present may endure.  In particular, will law firms, as their current leases expire, down-size their premises and their rental bills by requiring staff to work remotely for much of the week, with presence in the office taking place on a rostered basis?   Even before Covid, flexibility in work hours was being made available to accommodate especially lawyers and staff with domestic and family demands.  If that becomes the norm, work stations (limited in number to those likely to be in the office at any one time) and meeting rooms will become the favoured office design.  Efficiency and economy will be the winners, though how that will affect the camaraderie and spirit and sense of working together may be another thing.

As to the Courts, my feeling is that Covid will have served to accelerate a trend that was happening anyway to reducing in-court hearings and appearances, at least at interlocutory stages.  Case management ushered in judicial conferencing by telephone, no bad thing, and avoiding the cost and time involved in walking up to court for interlocutory directions that were either agreed in advance or, with a bit of judicial prodding, would end up as consent orders.  

The Rules Committee is currently considering submissions that it has received on proposals to improve access to civil Justice by making it cheaper.  These involve “streamlining” procedural reforms in the High Court, as well as increasing the jurisdiction of the Disputes Tribunal and giving the District Court more leadership by creating a Principal Civil Judge. 

The recognition of the relative simplicity and lower costs of the Disputes Tribunal in particular and of the District Court does turn the torchlight on the increased complexity of the High Court Rules over recent times, the result I would respectfully suggest of an over-zealous Rules Committee that has failed to see the cost implications of that complexity and of the unintended consequences of misplaced efforts to achieve what is euphemistically called more efficient use of scarce judicial resources.  Take the example of written briefs of evidence, introduced so it was said with that objective in mind.  The outcome was lengthy briefs crafted by lawyers rather than witnesses, replete with submissions, irrelevancies and documentary commentaries.  To deal with that problem, the High Court Rules were then amended to introduce a multi-step process of objection notification, response, and ultimately judicial determination, the latter accompanied by written submissions.

So has the augmentation of traditional oral hearings with written briefs and written submissions reduced litigation costs and improved access to Justice?  Alan Galbraith QC in his submission to the Rules Committee on their Access to Justice Proposals certainly doesn’t think so and most senior practitioners (including me) would agree with him.  As he said: “The costs which cripple cases are incurred in the out of court processes” and he instances written briefs as the worst offender.  Further: “Costs did not explode because of talking too much, they exploded because of writing too much”.   Indeed!

The latest iteration of the Rules Committee proposed reform provides for (1) affidavits, supplemented by oral evidence on disputed facts (requiring, I would suggest, a process for determining what is disputed and what is not) (2) interlocutories to be determined on the papers (making written submissions even more important) (3) documents admissible as to the truth of their contents (which, it can be predicted, will lead to the creation of documents for the purpose of use in litigation).  These reforms, if adopted, in my view will exacerbate the problem, not solve it.  

Elsewhere in its December 2021 update, the Rules Committee, ironically, signals (without expansion) the correct approach when it says: “Every civil case should be heard in a way that keeps the cost of coming to court proportionate to the nature and value of the issues in dispute [which] would mean that adopting simpler procedures for administering and hearing civil cases may be a better option than keeping the status quo”.

In considering these issues, the elephant in the room is civil legal aid and the unrepresented litigant.  It has been pointed out before that savings by making legal aid more difficult to obtain simply end up in greater costs to the system of having to accommodate unrepresented litigants.  The recent survey of the legal profession commissioned by the NZ Law Society (discussed in LawTalk Issue 948 in articles by Morwenna Grills and James Barnett) highlight the ever-increasing deficiencies of the civil legal aid system, both from the view of grossly inadequate remuneration and the excessive bureaucracy which has seen lawyers driven from undertaking cases on legal aid.  The advent of litigation funding has helped to fill a gap but only where the amounts claimed are attractive to a commercial funder.  Exhortations to the legal profession to undertake more pro bono work than they already do against an implied threat of having their exclusivity to appear in the courts removed will without doubt lead very rapidly to greater costs to the system and inferior quality of Justice.

Rather gloomily then, the post-Covid litigation world that I see is one where the perennial problems and issues surrounding the cost of civil Justice will persist.  That is in time likely to trigger cries for the abandonment of the common law adversary system and its replacement with a Continental Inquisitorial mode of dispute determination in which the Judge has almost complete control of the entire process from beginning to end, including determining issues, scope of discovery, evidence, engagement of experts and primary questioning of witnesses.  The issues around that are splendidly discussed, with reference to earlier papers by Justice Stephen Kos and former Justice Robert Fisher, in a research paper on “Alternative Modes of Civil Justice” prepared for the Rules Committee by the Clerk to the Committee, Sebastian Hartley.  One would hope that the debate that emerges is one that includes a focus on first the economics of an inquisitorial system (with likely a far greater number of Judges required), secondly on the impact on practising lawyers and thirdly on whether it delivers superior Justice (including perceived Justice).  In this last respect, the famous caution of Lord Greene, Master of the Rolls, against a Judge taking over the examination of witnesses and thereby descending “into the arena [where he] is liable to have his vision clouded by the dust of the conflict” will, hopefully, be recalled.

Jim Farmer QC

24 January 2022


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