If competition is so good, why can’t we have Courts that compete with each other?

On 25 February 2000 the NBR reported Elias CJ as saying that she “did not like” the idea of Judges specialising.

Whether by design or default her preference has become our reality. 

The system has its down-sides.  For example one of the newly appointed High Court Judges was recently given a case in an area of law outside his area of specialist expertise.

After a few days, both plaintiff and defendant decided to settle as best they could since neither had enough confidence that he understood the law.

They deserved better.  This is a one-size-fits-all legal system and it has some real problems.

A distinguished lawyer from Asia consulted me recently.  His curiosity causes him to look occasionally at the Courts of New Zealand website to see what is happening down here and he said he had been struck by the lack of civil litigation in the High Court, the Court of Appeal and the Supreme Court.

To test the accuracy of the site, he went to the High Court in Auckland during the afternoon a couple of weeks ago.  Only two Judges were sitting – and they were probably the only two Judges who were sitting in civil justice in the High Court in the country at 2.30pm that day.

He said that where he comes from, word is out that our legal system is failing and that international litigants who can do so should avoid the country.

What should we do?

I mean no disrespect in what I say next to any of our Judges.  They have been appointed to sit in the existing system, and as best I can tell, they try their best to make it function effectively.

Ray Finkelstein recently resigned from the Federal Court in Australia.  According to the Melbourne Age on 25 June 2011 he said:

“It became apparent [that commercial cases] took up an unnecessary amount of Court resources and they diverted company executives away from their ordinary duties at the company.  What I saw was outmoded rules of practice and procedure.”

He studied how US courts had grappled with the issue and he began to adopt and modify initiatives from various jurisdictions to suit Australian conditions.

In the late 1990s, the Federal Court in Australia set up dedicated lists, ensuring that cases were allocated to Judges whose expertise was in specific areas of the law.  He persuaded the Chief Justice to set up a Corporations List in Melbourne over which three Judges – all of whom had recognised expertise in commercial law – would  preside.

It was like a magnet – drawing cases from around Australia.  At one stage, 90% of all corporation cases in the Federal Court were filed in Victoria.

He implemented a “rocket-docket” model of case management which compelled judges and lawyers to set out clearly the disputed issues and set a six month deadline for resolving disputes.

The catalyst for efficiency these days is competition.  When people compete for business, the quality of service tends to go up and the price tends to go down.  But there is no competition at present in the New Zealand Court structure.

This is not how other countries organise their Courts.

In England, the Chancery Division, the Queen’s Bench Division and to a degree, the Commercial Court all vie for business.  They have different procedures and different judges and litigants can, for many disputes, choose the Court and judges they think will produce the best outcome.

In Australia, the Federal Court competes with the State Supreme Courts and the Federal Court competes with itself.  If one system has judges and procedures that are perceived to be better at resolving disputes, they attract more business.

Why can’t we do the same?

Why can’t we have, for example, a Commercial Court with designated judges and, to a degree, its own procedures, which competes with the rest of the High Court?  The current Attorney-General has recently spoken in favour of having such a Court.  Litigants and their lawyers will show quite quickly the Judges and the rules that they prefer.

The Chief High Court Judge is currently holding some meetings throughout the country in which lawyers are encouraged to recommend ways by which our courts can be made more effective.  The focus in the advertising appears to be more on the High Court Rules than on judicial specialisation or on structural reforms but it would be good if those of you who attend the meetings could emphasise the benefits of more expansive initiatives.

I recommend that we should, like England, Australia, and other countries, create different divisions within our courts, with different procedures and different judges – and let consumers decide which they prefer. 

The only winners from this process will be you or me, if we are unlucky enough to be involved in High Court litigation.  Otherwise, it will be the litigants for whom we are privileged to act.