Wide-ranging reforms proposed for civil litigation

Thursday, May 20, 2021

As part of its aim to improve access to justice, the Rules Committee, the body responsible for the rules of procedure in New Zealand’s courts, has released a paper setting out suggested reforms for civil litigation across the High Court, District Court, and Disputes Tribunal. These proposals, if enacted, would represent some of the most significant changes to the court process in decades.

The reforms are aimed at facilitating better access to the courts, improving confidence in the court system for civil litigants, and bringing the justice system’s workflow under control as it grapples with the weight of an enormous backlog, exacerbated by the COVID-19 pandemic.

These proposals are only draft at this point, and the Rules Committee is seeking further input and submissions before making final recommendations.

Proposed changes to the High Court

The Rules Committee’s proposals for the High Court are particularly far-reaching and would mark 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 proposals include:

  • current discovery rules be replaced by an adapted type of initial disclosure, where all parties must disclose the key documents that they rely on and any adverse documents, with additional disclosure as directed by a judge;
  • an initial issues conference, where the merits of the claim would be fully addressed and discussed;
  • a default position of interlocutory applications being dealt with on the papers, unless a hearing is considered necessary;
  • the hearing placing greater emphasis on documentary evidence, and most evidence being given by affidavit;
  • less leniency towards affidavits which are filed containing argumentative material, possibly by imposing adverse costs awards as a deterrent against noncompliant affidavits; and
  • limiting the use of expert witnesses to one per topic per side, and encouraging the use of court-appointed independent experts.

Proposed changes to the District Court

The Rules Committee acknowledged that civil litigation in the District Court leaves a great deal to be desired. However, they suggest that here the problem is not with the operational rules, but instead with resourcing. Proposed changes to the District Court include:

  • the creation of a new role of “Principal Civil District Court Judge” to manage and oversee the civil litigation workflow within the District Courts;
  • the introduction of part-time Deputy Judges who also continue to work in private practice, such as Queen’s Counsel or other senior practitioners (a process used overseas, including the United Kingdom);
  • changing the process of bringing a claim to the District Court for civil litigants, particularly in debt recovery matters, by introducing a pre-action protocol; and
  • allowing more flexible processes for determining the substantive claim, including allowing judges to direct that a hearing be held based on initial disclosure alone, without any additional discovery.

Proposed changes to the Disputes Tribunal

The Rules Committee recognised the success of tribunals in bringing swift resolution to parties, without the need for the high costs of lawyers. Suggested reforms for the Disputes Tribunal include:

  • renaming the Disputes Tribunal to the “Small Claims Court” or “Community Court”;
  • substantially increasing the jurisdiction of the Disputes Tribunal, which is currently $30,000, to perhaps as high as $100,000, in recognition of the reality that claims for less than $100,000 are often not economical to litigate in the District Court or higher;
  • introducing a right of appeal for claims above $50,000; and
  • establishing a procedure for claimants to enforce a successful award, without needing to use the District Court processes.

The Rules Committee has invited comment and submissions from all areas of the community. Submissions will be accepted until Friday 2 July 2021. You can read the entire paper published by the Rules Committee here.

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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