Courts - Is the High Court’s Civil Jurisdiction in “a Death Spiral” (Part 3)?

In the last issue of NZ Lawyer I referred to the figures that the Ministry of Justice has given me under the Official Information Act concerning the pitifully small number of defended civil trials in the High Court.  On any day of the week there is likely to be only one defended civil trial in all of the 18 Registries of the High Court.

I said that the figures didn’t dampen my enthusiasm for judicial specialisation and that I would say why this is so.

First, I think it is important to ask why there is so little serious civil litigation in the High Court since a lack of judicial specialisation is only one of the reasons why the public is avoiding the Court.

We have a legal system that we inherited from England at a time when documents had to be written by hand.  The process of discovery took a few hours at most since so few documents existed for most disputes.  With so little documentation, a Judge was able to hear several civil trials a day.  There were no written briefs of evidence or written submissions. Pleadings, being written by hand, were generally short.

These days, even a modest dispute is likely to require a consideration of a substantial volume of papers.

Further, the Courts require litigants to produce a lot of expensive documents.  Written submissions must usually be filed before a trial and at the end of a trial; written statements of evidence-in-chief, in answer and often in reply are to be prepared.  Extensive affidavit evidence is often required for interlocutory applications

The Courts haven’t encourage Barristers to exercise restraint but have done the opposite, by imposing more and more liabilities on them for negligence, making them engage in “defensive lawyering”.  And defensive lawyering is invariably expensive lawyering.

The end result is that the cost of complying with the High Court’s procedures is much greater than most citizens can pay. 

Until the rules are changed to reduce these costs, most citizens will be excluded from the State’s system of dispute resolution.

As for the others, I believe that wealthy individuals and corporate litigants are wary of the Courts and that one of their reasons for this is a lack of judicial specialisation.

The computer technologies have led to an explosion of information in all areas of  learning and the age of the generalist has passed.  As dinosaurs were destroyed  by a meteor so generalists were destroyed by the computer.

Litigants know this and are reluctant to submit a dispute in a specialised area of law to a Judge who has no known competency in that area of law.  They will prefer to find a specialist arbitrator or some other less risky solution.

If there are only a handful of defended civil trials a year, how could the High Court be organised to deal with the specialist needs of its users ?

First, I think that the High Court should be divided into two divisions – a Civil Division and a Criminal Division. Some Judges should be assigned to the Criminal Division where they would sit exclusively.

Others would be assigned to the Civil Division. If there is insufficient work to keep them busy there at present, they should sit part time in the Criminal Division – but their primary focus would be on the Civil Division.

Next, I consider that the Civil  Division should adopt the practice that exists in the State of Victoria where some Judges are assigned a specific area of legal responsibility. In that State there are a number of specialist “Lists”  e.g. an Admiralty List, a Technology Engineering and Construction List, a Commercial List, a Corporations List, an Intellectual Property List, a  Judicial Review and Appeals List, a Long Cases List, a Major Torts List, a Personal Injuries List, a Valuation Compensation and Planning List and a Taxation List.  The individual areas of responsibility in New Zealand would be divided somewhat differently. There would, for example, be an Equity List and an RMA List. 

Judges in the  Civil Division would, in general, be assigned to sit in a specific area of law.  If a Judge did not have the necessary degree of knowledge of that area of law on appointment, it would be a condition of appointment that he or she would commit to acquire it.

Judges would be required to attend conferences in their area of specialist responsibility. 

If only one Judge was assigned to a specific area of law, that Judge would hear all disputes whether they arise in the city or town where the Judge usually sits, or in another town or place.  Interlocutory applications would generally be conducted by video link.

There would be a Court Users Group, comprised of people who can be relied on to give honest feed-back on both the successes and failures of the system so that it can be improved quickly.

Specialist Judges would be encouraged to devise and publicise procedures that will make the Court work more efficiently.

Ideally, the Government should pay for the Chief High Judge to travel to other Common Law countries where she would investigate the different ways in which the Courts there have been organised to cope with the demands of specialisation. She and the other members of her Committee would then confer with relevant Bodies in New Zealand on their proposals, and when they have finalised their plans, they would implement them.

For information about Anthony Grant, see www.anthonygrant.com