Judicial Specialisation – the Attorney-General joins the debate

 In my three “Death Spiral” articles I have referred to the trickle of civil trials in the High Court.

A major reason for this is a lack of judicial specialisation in that Court.

Let me illustrate the need for specialisation in the context of intellectual property law.  None of the Judges in the High Court, Court of Appeal, or Supreme Court have been appointed from a specialist IP background.

One of our senior judges told me recently that he had observed a patent case in London.  The judge and counsel were all IP specialists.  The case took two hours when, as the judge told me, it would probably have taken “weeks” in New Zealand.

The lack of judicial specialisation in IP law in New Zealand is well known in the international community.  Most serious practitioners in this area of law in both Australia and New Zealand belong to IPSAANZ.  They meet regularly and, through their network of international contacts, are able to learn what works and what doesn’t work.  As a result of exchanges like this I don’t believe that any serious multi-national IP litigation will be fought in New Zealand at present if it can be fought elsewhere.

When potential litigants are told that a case that takes two hours to hear in London will take “weeks” in New Zealand, with costs that run into several hundred thousand dollars, and that the judges who deal with the case at trial and on appeal will be non-specialists, it is understandable that they will decline to pursue their disputes through the New Zealand Courts.

In my last article on this topic, I referred to the way in which the Equity Division of the Supreme Court of NSW was structured.

I was at a Trusts conference in Australia a couple of weeks ago and spoke to the Chief Judge in Equity of the Supreme Court in NSW about this.

The Equity Division of the Supreme Court in NSW has a wide jurisdiction, encompassing areas of law that are somewhat wider than the conventional boundaries of Trusts and Equity.  She told me that Judges move amongst the different areas within the Equity Division.  A Judge with a specialist interest elsewhere may be encouraged to pursue that interest.  So, for example, she has arranged for a judge who has expertise and an ongoing interest in defamation to sit for one week a month on the defamation list.

This model has much to commend it.

We have many excellent specialists in the High Court and they should be encouraged to work in their areas of specialist expertise.

I said in my last article that the Chief High Court Judge, Justice Winkelmann, should be funded to travel to other Common Law countries to learn how their courts have been organised to provide for judicial specialisation.  The New Zealand response will probably differ from every other country’s experience, but that is no matter.  What is important is that we should capitalise on the specialist skills that our judges possess and arrange our senior courts so that both in the High Court and at the appellate levels above there are judges who have acknowledged expertise in the areas of law that arise for determination.

In his speech at the swearing-in of Justice Whata last week, the Attorney-General said that “There is much to be said for some specialisation in the High Court…”  He spoke against people who say “that arbitration is the best mode of dispute resolution” and wants to encourage people to use the Courts for resolving civil disputes.

I am sure that all barristers who practise in the High Court would support changes that will attract more civil work to the Court.

The Attorney-General envisages that with greater specialisation in the High Court “there [will] still need to be some criminal trial work undertaken by all Judges.”  With the volumes of civil work in the High Court at present, that is probably inevitable.  The model of specialisation that is eventually determined may require all Judges to undertake some criminal work but that need not detract from a much greater focus on specialisation – which will be a vital element in attracting more civil work to the High Court.

I end this article on a more sober note. 

A number of senior lawyers have spoken to me about my Death Spiral articles.  They support me in what I have said and ask what kind of criticism or “sanctions” I may have suffered, from what I will call, “the Establishment”.

They do this because there is a widely held assumption that a practising lawyer who writes or speaks about these issues will be sanctioned in some way.  This may take the form of exclusion from State-controlled appointments, or it might be manifest in other ways.

Although these concerns may be misplaced, the fact that they are widely held should be a matter of concern to all lawyers who care about the well-being of our system of civil justice.

I hope that New Zealand lawyers will not be suppressed from promoting debate about reforms by fears that their careers will be harmed if they do so.