Is the High Court’s civil jurisdiction in a death spiral? An update.

I wrote three articles last year in which I referred to the tiny number of civil trials that are taking place in the High Court.  Using the words of a Judge, I asked whether the civil jurisdiction of the High Court was “in a death spiral”. 

More than a year has gone by since then and I can update the statistics.

Things have got better in Auckland and Hamilton but not much better elsewhere. 

The number of defended substantive civil hearings for general civil proceedings and originating applications are set out in the Table below.

If centres that produce 24 hearings or less a year are excluded (on the basis that they constitute only two hearings a month, which is inadequate to keep local lawyers skilled in the art of civil trial advocacy and to train future Judges) there are only three High Court centres which have more work:  Hamilton, Wellington and Auckland.

I will start with Wellington.  The number of defended hearings there in 2011 rose from 41 to 48, but it is my understanding that much of Christchurch’s High Court work was moved to Wellington in the aftermath of the earthquakes in Christchurch.  Christchurch’s hearings fell from 37 to 23 between 2010 and 2011 and it looks as though the increase in numbers in Wellington may have been attributable to the Christchurch work that was moved there.  So Wellington may have stood still or perhaps gone backwards.

That leaves only two centres, Hamilton and Auckland.

There were 38 defended civil hearings or originating applications in Hamilton – that is about three a month.

Auckland almost doubled its work within a year.   I haven’t checked the number of barristers and in-firm litigators who practise in the Auckland area but I suspect that 271 defended cases is considerably less than one case a year for each of them.

In practice, it can be said that Auckland is the only centre where there is a credible amount of High Court defended civil hearings.  The practitioners in the other 18 registries will be struggling to get sufficient work to acquire adequate trial advocacy skills. The people who might be appointed as Judges will also be struggling to get sufficient trial work to acquire the skills that are appropriate for Judges.

It is inevitable that people who are appointed to the Bench, who have not had a deep immersion in trial advocacy, may struggle in various ways.  Reserved decisions are one problem that they typically face.  Lord Denning’s advice to newly appointed judges was that they should not reserve a decision for the first seven years following their appointment.  Here, the converse tends to be more the norm.  A colleague complained to me the other day that he has been waiting for more than two years for a decision from the High Court.  I believe the Judge concerned, who is a pleasant and well-intentioned person, faces difficulties in part through the absence of the kind of immersion in trial work to which I have referred.

Another colleague informed me of a High Court Judge who has recently decided a case for reasons that were neither argued nor pleaded.  Again, lawyers who have had a deep immersion in litigation would know that if a Judge becomes aware of a reason that might affect his/her decision, which has not been pleaded or argued, he/she should inform the parties of it and give them the opportunity to make submissions on it.

Practitioners who encounter problems like this will tell their clients, and their colleagues, and it is inevitable that disputes will be steered away from the High Court.

This is unfortunate since the country needs a healthy and thriving legal system.  I was told on good authority last week that arbitration is not much used in parts of Australia and the explanation is that the local Courts are so efficient that there is little perceived need for arbitration.

That is what we should be aiming for and hopefully the reform initiatives that the Law Commission has recommended and that the High Court is considering, will assist to achieve that end.