How others see us: A need for judicial specialisation

 Trusts and Trustees is a respected international journal that specialise in Trusts.  It is published by the Oxford University Press and is co-edited by Toby Graham of  Farrer’s in London and Tony Molloy QC in Auckland.

Its Editorial Board includes Dr Donovan Waters QC, Lord Peter Millett and Sir Gavin Lightman.  In the world of Trusts and Equity its Editorial Board is about as good as you can get.

Its latest issue has a feature on “emerging Trust jurisdictions” and has articles on China, Cypress, Hong Kong, Malta, Panama, Russia - and New Zealand.

The editorial comment makes embarrassing reading for New Zealanders. 

Before I refer to it I should mention that Molloy wrote an article that was published last year in a journal called Offshore International which contained some stinging criticisms of our non-specialist legal system.

Molloy’s comments came to the attention of Chris Finlayson, our Attorney-General, and the NBR ran a story in which Finlayson was reported as saying that it was in the interests of justice for New Zealand to have a principled debate about judicial specialisation.

With that background I turn to the editorial from Trusts & Trustees:

“…the acute problem besetting [New Zealand] is lack of judicial specialization, combined with a high proportion of judges (below the very distinguished exceptions of Blanchard and Tipping JJ on the Supreme Court) whose judicial utterances display a serious ineptitude for equity and trust matters.  …. The problem is compounded by the unjustified self-confidence of many solicitors and counsel that they can ‘do anything that comes their way’.

“The encouraging news is that New Zealand’s current Attorney-General … has accepted that … this forensic lottery needs serious consideration; ….”

The people who matter in the international Trusts industry will either read Trusts and Trustees or learn of its views, and they have considerable influence in deciding whether international work should come here or not.  And not just Trust work.

In the light of the current Editorial are they likely to recommend NZ as a place to do Trust business?  Of course not.

Now that the daily lists for the High Court are on the Web I have been looking at them on a regular basis and have been amazed to see how little Civil work there is.  If the lists are accurate, on most days there is no High Court Civil work anywhere in the South Island.  In the North Island Auckland usually has a reasonable amount of work, Wellington has a little, and there is hardly any work elsewhere.

People who know this may say that there’s no point having specialist judges because there won’t be enough work for them to do.

I say the opposite.  One of the major reasons for the unpopularity of the system is the fact that we don’t have specialist judges.

It is why so many disputes that would usually have gone to Court now go to arbitration. 

It is why so many other disputes go to mediation, no matter how unprincipled and unfair the process is – and it is both of these things.

This is not a criticism of any of our Judges but of the system in which they are contracted to sit.  

The fact is that expertise is like a magnet.  The more there is of it, the more people will be drawn to it.

Molloy sometimes expresses his opinions more forcefully than I think is good for the causes he advocates.  But if the substance of his criticisms is sound, an extravagance of expression does not detract from the validity of them.  And I, and many others who I know, believe that the call for judicial specialisation is fundamentally sound.

I cannot understand why the Attorney-General is the only person with sufficient influence and authority within our legal system who seems to have recognised this reality.

I am aware that some people have thought I have co-operated with Tony Molloy in some of my articles.  There is no truth to this belief.  Nor do I think that those who read this article should say that criticism from Trusts and Trustees is merely a criticism from Tony Molloy.  It is not.  The Editorial comments are jointly authored and are from a legal journal of international repute with an Editorial Board of impeccable quality.  That is how readers will interpret them.

If the Government thinks that New Zealand can become an international financial centre it should reflect on such criticisms because there is no possibility that international financiers will bring their business here if they lack confidence in our legal system.  An Editorial from a respected international periodical which condemns the competency of our Courts in an important area of its work will obviously work against that initiative.