Improving Access to Civil Justice

Reform of the New Zealand Civil Justice System

There has been growing concern regarding the access to justice as litigation becomes more expensive and resort to the courts has become an unrealistic option for most people.1 The Rules Committee (Committee), the statutory body responsible for the procedural rules of the New Zealand courts, has released a report recommending several reforms to Court processes with the intention of improving overall access to justice.

1 Andrew Beck “Access to justice only for some” [2021] NZLJ 140 at 143.

The High Court, District Court, and Disputes Tribunal (Tribunal) have all received proposed reforms and we touch on the key recommendations for each below.

High Court Recommendations

As Alan Galbraith KC submitted to the Committee, “litigation in the High Court has become ridiculously expensive. It has also become unduly complex and delayed”. The procedural rules adopted over the years have caused litigations costs in the High Court to balloon, creating a barrier to both bringing and defending claims.

Three critical issues with the current approach have been identified as:

(a) The scale, burden and disproportionate cost of discovery;

(b) Trials being unnecessarily extended by irrelevant evidence; and

The Committee intends to move away from ‘maximalist’ litigation, where all issues are investigated without sufficient regard to proportionality, leading to the issues identified above.

The key proposals for the High Court include:

Introducing proportionality as a guiding principle to r 1.2 of the High Court Rules 2016 (Rules) as a key concept when interpreting and applying the Rules;

Amending the existing discovery rules so that initial disclosure includes known adverse documents, and any subsequent discovery ordered at the judicial conference stage is necessary and proportionate to determine the relevant issues;

Incorporating a judicial issues conference to review the matters in dispute, what other steps are required for trial, to address the prospect of settlement and potentially schedule a trial;

Including a presumption that interlocutory applications be heard remotely and with time limits, and that a provision be made to allow interlocutories being determined on the papers;

Limiting the use of expert witnesses;

Amending the Evidence Act 2006 and the Rules to allow the agreed bundle of documents to establish the facts and for such documents to be admissible as to the truth of their contents without the need to be referred to by witnesses; and

The continuance of remote hearings, which were developed and incorporated during the COVID-19 pandemic as a standard part of the court’s procedure.

District Court Recommendations

Less than 10% of matters in the District Court are defended. The Committee’s view is that the operational rules governing the District Court are largely fit for purpose; however, they have identified one area for improvement: the creation of a separate, civil division of the District Court with the appointment of a Principal Civil Judge. This should address resourcing issues in the District Court and ensure sufficient judge-time is allocated for civil work.

In addition to the above, the Committee proposed the following reforms to the District Court:

The appointment of part-time Judges to assist with the civil litigation workflow within the District Court; and
The introduction of pre-action protocols for debt recovery claims, to encourage parties to deal with each other in a reasonable and proportionate manner.

The Committee also suggested that further consideration be given to using the Tribunal to conduct settlement conferences for District Court matters. The Tribunal’s unique procedures for engaging with parties to civil disputes may be beneficial; or more appropriate particularly for those matters including self-represented litigants.

Disputes Tribunal Recommendations

The Tribunal is a division of the District Court, and is designed to provide a quick and inexpensive avenue to resolve civil disputes. The Tribunal remains an inherently small claims jurisdiction and, while the Committee does not recommend any change in process, it has made several suggestions:

Increasing the Tribunal’s jurisdictional cap, from $30,000, to $70,000, or $100,000 with the consent of all parties;

Introduction a general right of appeal to the District Court for orders between $30,000 and $100,000;

Development of a library of all Tribunal decisions issued, categorised into topics, available for research purposes, academics, referees and judiciary;

A direction sought from the Minister under s 57 of the Disputes Tribunal Act 1988 (Act) regarding reporting cases of public interest;

That s 18(6) of the Act be amended to include “determine the dispute according to the substantial merits and justice of the case, and in doing so shall have regard to the law but shall not be bound to give effect to strict legal right or obligations or to legal forms or technicalities where that would result in a substantial injustice”; and

That consideration be given to finding more effective and straightforward ways for claimants to enforce a successful reward.

Our Comment

Recommendations on how to improve access to justice can only be viewed as a positive. It is no secret that civil litigation is expensive and often inaccessible, as evidenced by the number of undefended claims as mentioned above. Access to justice should not just be about enabling people to get through the doors of court, but facilitating and exploring better ways of resolving disputes. Introducingprocedures to streamline the court process, while continuing to promote resolution at the earliest stage, is without doubt beneficial to all parties.

Of particular note is the recommended increase to the jurisdiction of the Tribunal to capture claims that fall just outside the ambit of the Tribunal, but that do not justify the financial burden of pursuing the claim in the District Court. This is a well overdue reform and one that will significantly and immediately make justice more accessible.

You can read the full report of the Committee here.

If you have any questions on the above or need assistance with a claim, please do not hesitate to contact our Litigation & Dispute Resolution team.

Disclaimer: The above is intended for informational purposes only and should not substitute for specific professional advice on any matter and should not be relied upon for that

Filed under: litigation, Disputes