Is the High Court’s civil jurisdiction in a death spiral? Part 1
I have previously written about the need for some of our High Court Judges to specialise in Equity and Trusts
Today’s article is on that theme, but is expanded into the need not just for more judicial specialisation but for other wide-reaching reforms.
The Bar Association held its annual conference recently and its theme was Justice at any cost”.
Underlying the theme was the reality that the High Court system of Civil justice is failing. And not failing badly but very badly.
Readers who monitor www.courtsofnz.govt.nz/business/calendar/daily-lists will see that there is hardly any High Court civil litigation outside Auckland. One Judge reported to the conference that he and others had been discussing whether the system was in a “death spiral”.
The cost of following the High Court’s procedures, combined with the delays and unpredictability of the outcome is a huge deterrent to most potential litigants.
There seemed to be near unanimous agreement that judges in the High Court should be made, or allowed, to specialise. This doesn’t mean that they would only hear cases in their area of special interest. Until the work flows build up they will need to do a variety of work but they should be available to monitor and try the cases within their designated area of specialist expertise.
The Attorney-General spoke favourably of a “docket” system where a case is allocated to a judge who hears all the interlocutory applications and then takes the trial. There were several reports of the efficiencies that this system creates in the jurisdictions where it has been implemented.
The Attorney-General also spoke in favour of judicial specialisation. I think I recorded him accurately as saying “Having a Judge who knows the topic and can master the case at an early stage is extremely valuable”
The Conference heard about the “rocket docket” system in NSW where a case can be tried within a few weeks of filing. It heard of “chess clock directions” that can be made in England where parties are given a fixed amount of Court time and can choose how to spend it. (“Chess clock directions” force parties to compress their case down to the essentials and make them focus on the issues that truly matter.)
The radical changes that have been made to the civil justice system in our District Courts illustrate the extent to which the old procedures are regarded as comprehensively out-dated.
It was said that one of the reasons why specialisation has not spread through the High Court is that some judges prefer to have a broader diet of work. The response that was given to this is that the courts do not exist for the convenience of judges but for the maintenance of a credible system of civil justice for the people of New Zealand.
The Conference heard of developments in Australia, England and elsewhere where litigation funders are being encouraged to assist with the funding of claims that would not otherwise be made because most potential plaintiffs can’t afford the cost of litigation
Evidence was given of the pitiful level of cost recoveries in many cases (in the region of 10%-20%) which act as a perverse incentive for defendants to oppose applications, thus increasing both the cost of litigation and prolonging the time that it takes to be resolved.
The Chief High Court Judge, Justice Winkelmann, spoke of how she has formed a Committee consisting of herself and Justices Venning and Miller to consider how the High Court can be made a more satisfactory forum for the resolution of disputes.
The problems in the High Court can be contrasted with the successes of some specialist courts in our legal system. The Family Courts, in Auckland at least, seem to have masses of work. Specialist Courts attract specialist advocates and there is greater confidence for people to make use of such Courts.
Until major changes are made, it doesn’t seem too extreme to say that the High Court’s civil business does indeed run the risk of being trapped in a “death spiral”.
On a daily basis potential litigants are being driven to arbitration, mediation and other initiatives that bypass the Courts. I have been asked recently to give opinions that parties will treat as binding determinations. . This is yet another process that parties are using to circumvent the courts.
Some people are not willing to confine their options to these courses. I am aware of at least one enterprise that is so mistrustful of our senior courts it will not do business in New Zealand unless the parties it contracts with agree that all disputes will be litigated off-shore.
I am also aware of other enterprises that are not willing to do any business in New Zealand because of their lack of confidence in our senior courts.
Justice Winkelmann’s committee has some hard work ahead of it.