Access to justice - significant reform to Court processes recommended by the Rules Committee

Tuesday, November 29, 2022

The cost of Court proceedings, delays in resolving disputes, and a lack of knowledge of Court processes all cause significant issues with access to justice. The Rules Committee, the body responsible for the rules of procedure in New Zealand’s courts, has been conducting a review to see how access to justice can be improved.

The Committee’s reform proposals released last year received substantial support from the legal community, and a final report, just released, recommends implementing a number of reforms.

Reform is proposed for the High Court, District Court, and Disputes Tribunal, in what could be the biggest shake-up of the court system in decades.

Proposed changes to the High Court

The Rules Committee’s proposals for the High Court are particularly far-reaching and are a significant departure from current practice. The aim is that over time they would result in a culture shift, away from a “maximalist” approach to litigation. The Committee has said:
 

“Under this [maximalist] approach, all issues are investigated, all evidence called, and all matters argued, without sufficient regard to proportionality.The Committee does not agree with that approach to litigation. Rather, we consider that the best litigators refine and distil the key issues arising in the case and focus on them, ever mindful of proportionality. Yet it is concerning that, in some quarters, a maximalist approach is viewed as the benchmark for the competent pursuit of litigation.”


The proposals for the High Court include:

  • amending the guiding principle, that “the objective of these rules is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”, to include proportionality as a requirement;
  • adding a requirement for parties to provide known adverse documents in initial disclosure, as well as those on which the parties intend to rely;
  • adding a requirement for parties to provide their factual evidence statements shortly after the commencement of the proceeding, in the nature of “will say” statements, together with a draft chronology;
  • after the witness statements are served, holding a judicial issues conference, which will be a comprehensive review of the case with a judge, and at which the overall issues in the case, any orders for discovery (if more than initial disclosure is required), other interlocutory orders necessary for the case, and the steps for trial, are all addressed;
  • adding a presumption that interlocutory applications will be heard by remote means with time limits, and that provision be made to allow interlocutories to be determined on the papers;
  • at trial, allowing for greater focus on the contemporaneous documents to establish the facts, allowing such documents to be admissible as to the truth of their contents without needing to be specifically referred to by witnesses;
  • not permitting witnesses to traverse the documents in their evidence, but rather having them focus on facts that are in dispute; and
  • limiting the use of expert witnesses to one per topic per side.

The hope is that these changes will cause parties to engage with the substance of a dispute earlier, determining the real issues, and promoting settlement. For those cases that go on to a hearing, the parties should be able to reach that stage faster, and at less expense.

Proposed changes to the District Court

The Rules Committee believes that the problems with civil litigation in the District Court arise not from the operational rules, but instead from resourcing. Proposed changes to the District Court include:

  • the creation of a separate civil division of the District Court;
  • the creation of a new role of Principal Civil District Court Judge to oversee the strengthening of the expertise of the court’s civil registry, and to manage and oversee the civil litigation workflow within the District Courts;
  • the appointment of part-time deputy judges to exercise the civil jurisdiction of the court, much like the role of Recorders in England and Wales. They should be appointed from those in the profession with civil expertise, including King’s Counsel; and
  • the introduction of pre-action protocols for debt collection claims, to encourage parties to deal with each other in a reasonable and proportionate manner.

Proposed changes to the Disputes Tribunal

The Rules Committee has said that the Disputes Tribunal reliably achieves justice in an “expeditious, efficient, and proportionate manner”. The Committee does not recommend any changes in processes, but has made a number of suggestions:

  • substantially increasing the jurisdiction of the Disputes Tribunal, which is currently $30,000, to $70,000, or $100,000 with the consent of all parties; 
  • introducing a right of appeal for claims above $30,000; and
  • that consideration be given to broadening and clarifying the nature of the claims the Tribunal can consider and the types of orders it can make.

Although some submitters had recommended allowing legal representation in the Tribunal for higher value claims, the Rules Committee decided against this. Instead, the Committee noted that people can appear with submissions prepared by their lawyers, as many do already; and that people appearing can ask for a hearing adjournment, including to confer with lawyers. This latter option is not often taken up currently, but may become more common with higher value claims.

The next steps

The Rules Committee has invited further comment and submissions on the proposed reforms. Submissions will be accepted until Friday 24 February 2023. 

You can read the Rules Committee’s full paper here. The Rules Committee will then begin work on implementing changes at its first meeting next year. Some changes, particularly those in the District Court and the Disputes Tribunal, will require legislative change, so will be a longer process.

If you have any questions about any aspects of civil litigation, or would like assistance with drafting submissions on these proposals, please contact a member of our Litigation and Dispute Resolution team.

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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