The figures she gives are staggering: in the Auckland High Court, 40 per cent of judicial review cases and 30 per cent of appeals have one or more unrepresented litigant; in the Court of Appeal, of 228 active civil files, 25 per cent involve unrepresented litigants; in the Supreme Court over 50% of civil applicants for leave are unrepresented.
As Justice Winkelmann goes on to say, the unrepresented litigant is the “visible tip of a very large but submerged problem”, those who forgo commencing proceedings altogether and who are therefore denied access to civil Justice, what she calls “the justice gap”.
Among the causes of this situation, she first lists the increase in Court fees (filing and hearing) which, she says, reflect a user pays approach to the provision of justice that undervalues the intrinsic value to society of a civil justice system. She points out that, although the court facility benefits individual litigants, it also benefits society at large in that it prevents a situation where the strong can “by any means, including violence, always win out against the weak”. Rather soberingly in this respect, Francis Joychild QC, in a commentary on the Winkelmann paper in LawNews for 5 February 2015, says that many small businesses in South Auckland now use gangs to collect debts rather than file for them in the District Court.
Justice Winkelmann says that she is not against Court fees per se but does question the high amounts charged in New Zealand compared with Australia and says that only those who can afford to pay should be required to do so. It has to be acknowledged that there is provision at the moment for a waiver of court fees but the process is cumbersome. A very full statutory declaration of means and answers to questions occupying many pages must be completed and filed and this process must be repeated afresh for each stage of the litigation. An attempt that I made to have this streamlined for a pro bono client was rejected by the Ministry of Justice.
From court fees, the Judge turns to civil legal aid and recites some dismal statistics that make it plain that the failure of legal aid in New Zealand is a major reason for the growth in the number of unrepresented litigants. As she rightly says, cuts in and restrictions on legal aid are a false economy because of the greater demand that it places on court resources and court time by the unrepresented litigant.
Beyond the question of economic cost, however, a larger problem is the effect of the unrepresented litigant on the efficiency and fairness of the judicial process. As Her Honour rightly says, “fundamental aspects of our system of justice are built upon the assumption that parties will be legally represented”. That is, the adversary process is based on the premise that there will be what is sometimes called “an equality of arms”. This encompasses an assumption that the parties through their lawyers are familiar with substantive and procedural law and will be able to comply with requirements relating to pleadings, the rules of evidence and trial procedure and will also be able to make relevant and helpful submissions to the Judge to enable him or her to come to a just decision according to law. In addition, there are the problems that arise when the case is not being run by lawyers who by training and experience bring an objective detachment to the presentation of the case (what the Judge calls “a key feature of effective advocacy”) but instead is presented by a party in person who can seldom escape the emotion that being a litigant engenders.
More worrying too, she comments, is the risk of a Judge having to make up for the knowledge and presentation deficits of a lay litigant by intervening and assisting that litigant and thereby becoming “an effective participant” in the dispute. This can easily lead to disquiet by the represented litigant who may legitimately feel that (to borrow a phrase made famous by Lord Greene MR many years ago) the Judge has descended into the arena and let the dust of the conflict cloud his/her eyes.
The Judge, looking at potential solutions, raises the possibility of simplifying the rules of procedure but says that it is doubtful how far such proposals can be taken without compromising the objective of ensuring fair and open hearings that the current rules (particularly pleading and discovery) support. I am tempted to respond to this by asserting (as I have before) that the current Rules of Court are far too prescriptive and their very detail (and frequent amendments promulgated by the Rules Committee) contains traps even for experienced court lawyers. So simplification – yes - but not just for the unrepresented litigant.
However, I agree that abandoning at least the basic requirements of pleadings, discovery and the rules of evidence (which, through the relevance requirement, seek to attain efficiency as well as fairness) is just not viable and would lead to an open-ended free for all.
Justice Winkelmann then goes back to the question of the cost of litigation. She flirts with the McKenzie friend concept but rightly says it cannot fill the advocacy gap and also has other problems. She rejects also the notion that administrative tribunals are the answer, referring to studies that show that unrepresented parties are disadvantaged in tribunal hearings and that in any event the more complex the matters before the tribunal the more it will come to resemble a court. (That, broadly speaking, was similar to my own conclusion in the research work that I did for my Ph.D at Cambridge and subsequently over 40 years ago.)
Almost in desperation, the Judge then turns to the legal profession and places the burden rather squarely on its shoulders with an appeal to its better nature: “… it is the right thing for a profession sworn to uphold the rule of law, to do”. This is preceded by a warning to the profession:
“It has exclusive rights of audience in court to represent litigants. If the profession is unable to provide that representation in a form and at a price that allows people to use those services, it will not be long before the question is asked why should that exclusivity be maintained?”
One answer to that question may be that a new body of untrained and unregulated advocates will simply raise, perhaps to a lesser degree, the same problems that the unrepresented litigant causes. How the duty to the court in particular will operate is an interesting question.
Her Honour does pay tribute to the pro bono work that much of the profession provides but rightly says that there are overseas models that could be examined that provide more direction and focus to this work so far as access to the courts is concerned.
Ultimately, however, in my view, she puts her finger on the largest feature of the problem, perhaps without realising just how important it is in the scheme of things. She says:
“At the moment a 19th century model remains supreme. The lawyer is engaged and provides services from the commencement of the proceedings to the end, and on a time and attendance basis. There is no incentive for efficiency. The profession could explore different pricing models including fixed price services.”
Hallelujah! What the Judge describes is not a 19th century model. It is late 20th and 21st century model. Time recording and time costing have become the norm in place of the costing philosophy that existed 50 years ago, which was one of “swings and roundabouts” or “what will the case bear?” In other words, the fee that was fixed should be commensurate to the amount at stake. In modern day money, a $100,000 claim should not bear a fee of more than, say, $25,000 (some of which would hopefully be recovered on a costs award against the other party). On the other hand, a $100 million claim could rightly bear fees that were not determined according to an hourly rate but rather according the amount at stake and the greater degree of complexity and hence work and skill required that such a case would typically require. Litigation lawyers fortunate enough to be briefed from time to time in the latter kind of case and able to receive a return truly commensurate with the responsibility and skill required would (acting in accordance with the professional ideals advocated by Justice Winkelmann) be more than happy to take on cases of the former kind and indeed a greater amount of pro bono work.
When I said as much some years ago in a paper at a Legal Research Foundation Seminar on civil litigation, a former High Court Judge on a panel scathingly (and possibly deliberately) interpreted this as a complaint by leading commercial Silks that they were not being paid enough.
In my view, there is no doubt that the hourly rate discourages efficiency and hinders lawyers’ ability to focus on the essential and to cut corners where they should be cut. It encourages a “kitchen sink” approach to litigation and the attainment of apparent perfection – every ‘t’ crossed and every ‘i’ dotted – when that is neither necessary nor desirable. And, although the Judges rightly lament overly long written submissions and briefs of evidence, their insistence on so much being provided in writing, particularly before hearings and judicial conferences and interlocutory hearings, adds to the cost without proportionate benefit. (I need to stop here on this point – it is a confessed hobby horse of mine.)
Justice Winkelmann’s thought-provoking paper deserves wide spread attention and discussion. In the LawNews Opinion piece referred to above, Francis Joychild QC is to be commended for broadcasting the fact that the Judge “has illuminated the most critically important legal conversation of our time, for civil law at least”. She says, in a most interesting discourse that follows, that she wishes to participate in that conversation. So do I. Hopefully, many others will too.
Jim Farmer QC
11 February 2015