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Righarts, Saskia; Henaghan, Mark --- "Delays in the New Zealand Civil Justice System? Opinion v fact" [2011] OtaLawRw 2; (2011) 12 Otago LR 455

Last Updated: 30 March 2013

Delays in the New Zealand Civil Justice System?

^{Opinion v Fact}

Saskia Righarts^* and Mark Henaghan^†

I Introduction

There have been increasing concerns among the profession and the public about the length of time civil cases take to progress through the court system. In recent years there has been two conferences dedicated to the issue of delay in the civil jurisdiction.¹ The dramatic titles of these two conferences - one being “Civil Litigation in Crisis – What Crisis?” and the other being “Civil Litigation in Crisis – Beyond the Crisis”, underscore the views of many about the state of the civil justice system. Not only have there been two formal conferences about this issue, it is often a topic of discussion among the profession at informal meetings, and articles about this subject regularly appear in the media and the press.² The viewpoint often expressed in these articles is that the civil justice system is sluggish, and as a result many litigants are turning to other forms of dispute resolution, such as mediation and arbitration. Given these concerns, there have also been calls from some quarters for the establishment of a specialist commercial court in New Zealand.³

While the negative views of many about the state of the civil justice system is apparent, there is in fact a dearth of research investigating civil case progression that supports or negates these views. Just like the anecdotal views reported above, the majority of research on the issue of delay in civil proceedings has focussed on whether participants in the court system (lawyers, judges, court administrators, and litigants), and the general public, perceive that civil cases take too long to progress through the system. As with the views above, this research demonstrates that civil litigation is considered by most to take too long, and that delay adds unnecessarily to the hardship, both financial and emotional, experienced by litigants. For example, in a 2006 survey conducted by

^* Professional Practice Fellow, Faculty of Law, University of Otago.

^{† Dean and Professor, Faculty of Law, University of Otago. The authors}

^{would like to gratefully acknowledge the generous grant provided}

^{by the New Zealand Law Foundation that enabled this research to be}

^{undertaken. The authors would also like to acknowledge our research}

^{assistant Rachel Laing for her work on this project. Further, the authors}

^{wish to thank the Ministry of Justice for preparing the raw data for this}

^{paper, and members of the profession and Judiciary who gave us helpful}

^{insights and feedback on drafts.}

^{1 “Civil Litigation in Crisis – What Crisis?” conference held 22 February 2008}

^{in Auckland; “Civil Litigation in Crisis – Beyond the Crisis” conference}

^{held 24 September 2009 in Auckland.}

^{2 For example see, Anthony Grant “Is the High Court’s civil jurisdiction}

^{in ‘a death spiral’? – Part 3” (2010) 153 NZ Lawyer 9.}

^{3 Rob Stock “Civil Justice in Tatters” (2011) Stuff.co.nz Business Day}

^{<http://www.stuff.co.nz/business/5101412/Civil-justice-in-tatters> .}

the Ministry of Justice, 59 per cent of respondents (who were members of the public selected at random) disagreed, or strongly disagreed, with the statement “courts provide services without unnecessary delay”.⁴

Further, in a recent study of 1,875 adults randomly selected from the electoral role, more than half of them disagreed, or strongly disagreed, that their case would be completed in a reasonable time if they went to court.⁵ When the Law Commission undertook an in-depth review of the operation of the courts in 2004,⁶ submissions from individuals, organisations, and law firms expressed widespread dissatisfaction with the duration of court proceedings.⁷ While this research does not provide concrete data about civil case progression times, it is important, because if individuals perceive that civil cases take too long to resolve in our courts, then it undermines their confidence in the system. In turn, parties may choose another avenue to resolve their dispute,⁸ or it may put them off pursuing a claim altogether.

The concerns raised above are not unique, with research carried out in other jurisdictions revealing a perception that civil cases take too long to be resolved. For example, recent Australian studies reveal that the public and members of the legal profession are highly concerned by the slow pace of civil proceedings.⁹ These concerns are also echoed in the United States of America¹⁰ and Canada.¹¹ The civil court systems in the United

⁴ Ministry of Justice Public Perceptions of the New Zealand Court System and Processes (AC Neilsen, Wellington, 2006) at 23. This study was not limited to the civil justice system, but is reflective of the court system as a whole.

^{5 Saskia Righarts and Mark Henaghan “Public Perceptions of the New}

^{Zealand Court System: An Empirical Approach to Law Reform”(2010)}

^{12 OLR 329 at 337.}

^{6 Law Commission Delivering Justice For All: A Vision for New Zealand Courts}

^{and Tribunals (NZLC R85, 2004).}

^{7 Law Commission Seeking Solutions: Options for Change to the New Zealand}

^{Court System (NZLC PP52, 2002) at 21–22.}

^{8 John Green recently established the “New Zealand Dispute Resolution}

^{Centre” in response to the efficiency concerns in the civil jurisdiction.}

^{This Centre offers litigants an alternative avenue from formal court}

^{proceedings for resolving their disputes and offers a wide range of}

^{mediation and arbitration services. See Darise Bennington “New Zealand}

^{Dispute Resolution Centre opens to respond to litigation crisis” (2010)}

^{150 NZ Lawyer 4.}

^{9 See for example: Annette Marfording and Ann Eyland “Civil Litigation in}

^{New South Wales: Empirical and Analytical Comparisons with Germany”}

^{(2010) 28 UNSWLRS at 129; Rachel Callinan “Court Delays in NSW: Issues}

^{and Developments” (Briefing Paper No 1/02, 2002).}

^{10 See for example: John Beisner “Discovering a Better Way: The Need for}

^{Effective Civil Litigation Reform” (2010) 60 Duke LJ at 549; John Zhou}

^{“Determinants of Delay in Litigation: Evidence and Theory (paper}

^{presented to the American Law and Economics Annual Meeting, New}

^{York, May, 2008).}

^{11 Ronit Dinovitzer and Jeffrey Leon “When Long Becomes Too Long: Legal}

^{Culture and Litigators’ Views on Long Civil Trials” (2001) 19 Windsor}

^{Y B Access Just 106 at 107; See Canadian Bar Association Report of the}

Kingdom are also perceived to involve unnecessary delays. In England, a 1996 report by Lord Woolf on the civil justice system in England and Wales concluded that the system was “too slow in bringing cases to a conclusion”.¹² As a consequence of this report a series of reforms were introduced in 1999 to address the issues of delay and cost. The effect that the Woolf reforms has had on cost and efficiency of civil litigation remains a issue of debate, but a 2005 follow-up report (which tends to be the prevailing view) concluded that the reforms have improved the pace of proceedings, but have become more costly for many litigants.¹³

While the view that the civil justice system is sluggish is based primarily on anecdotal evidence and perceptions research, it is important that courts deal with (and are also perceived to deal with) civil disputes in a timely manner as lengthy litigation can have many negative effects. First, there is the emotional and financial cost of protracted litigation (both directly in the form of legal fees, and indirectly in the form of opportunity costs). Second, evidence may become unavailable or less useful over time, and witnesses may forget, move away, or pass away. Third, in a broad sense, the perception that cases take longer than necessary to proceed through the system has a negative impact on public confidence in the justice system.

2. Is there empirical evidence to support these views? Data from the District and High Court

Given the negative impression many individuals have of the New Zealand civil justice system, we sought to examine how long cases actually take to be resolved. The data in the figures that follow are for civil cases disposed since 2005.¹⁴ Detailed below for both of the above courts is the median time it takes a subset of civil cases to be disposed and the total number of cases in the specific categories we analysed.¹⁵ For

Canadian Bar Association: Task Force on Systems of Civil Justice (Canadian Bar Association, Ottawa, 1996) at 12, in which a survey of lawyers indicated that the areas of civil justice in most need of reform were the affordability of dispute resolution, followed by the speed with which cases are resolved.

^{12 Lord Woolf Access to Justice: Final Report to the Lord Chancellor on the Civil}

^{Justice System in England and Wales (HMSO, 1996) at 2 of Overview.}

^{13 Department for Constitutional Affairs The management of civil cases: the}

^{courts and post-Woolf landscape (DCA Research Series 9/05, 2005) at iii.}

^{14 This data was provided to us by the Ministry of Justice and was extracted}

^{from their Case Management system (CMS). While the data presented}

^{provides the most accurate picture of time to disposal for general civil}

^{proceedings, as the Ministry does not usually report the data in this way,}

^{the data is provided with the caveat that it may be subject to revision or}

^refinement.

^{15 The median length data was calculated from the time of filing in the court}

^{to the time they were resolved (at trial, settlement or withdrawn). Notices}

^{of Discontinuance are not always filed immediately after resolution,}

^{and in some cases can be filed many months after a case has in fact been}

^{resolved. As such, the data provided are likely to show the median time}

^{to resolution being longer than what it really is. The data is not broken}

the High Court (which has primary jurisdiction for civil cases where the claim exceeds $200,000), the data only includes cases that were originally initiated by a statement of claim or notice of proceeding. For the District Court (which has primary jurisdiction for civil cases where the quantum of the claim is less than $200,000), the data presented is for disposed cases originally filed by a statement of claim or a notice of claim (from 1

November 2009).¹⁶ Consequently, the data presented in this paper only represents a portion of overall civil proceedings that are dealt with by these courts (for example appeals, judicial reviews and bankruptcy cases are not included). The resolution date is calculated as either the date when the court was informed by lawyers/parties that the case had settled during the process (notice of discontinuance, or enquiries from the court), the date of the hearing, or the date that summary judgment was entered. The data is averaged for each year and separated into two categories: those that resolve prior to the allocation of a hearing date, and those that resolve after a hearing date has been allocated.¹⁷

High Court Data

Figure 1: National Data for the number of cases initiated by statement of claim or notice of proceeding disposed each year in the High Court.

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down by procedural steps/events, nor is it broken down into different categories of civil actions. The data has, however, been separated into two distinct categories – those that are resolved prior to the allocation of a hearing date, and those that are resolved after the allocation of a hearing date.

^{16 The Disputes Tribunal is the primary forum for small disputes in New}

^{Zealand, and hears civil cases up to a monetary value of $15,000 (or}

^{$20,000 with both parties consent).}

^{17 Matters are set down for hearing by judicial direction in accordance with}

^{the District and High Court Rules, with the majority set down at the}

^{second preliminary conference. Further, for many of the cases that resolve}

^{prior to the allocation of a hearing date, judicial time is spent managing}

^{these cases. The data in this category will include for instance cases dealt}

^{with by way of summary judgment.}

The above figure shows a steady increase in the number of these types of cases that have been disposed of by the High Court, with an increase from 1,295 in 2005, to 2,024 cases disposed in 2010 (an increase of 56 per cent). The substantial increase in the number of cases disposed in this jurisdiction indicates, contrary to the views of some in the profession,¹⁸ that the utilisation of the civil courts is not declining.¹⁹ Further, the figure above shows the bulk of these cases were resolved prior to the allocation of a hearing date with 84 per cent (1,706) of cases last year falling into this category.

Figure 2: National Data for the median number of days from filing to resolution

^{in the High Court}

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Over the past six years the median time²⁰ it take cases to be resolved that are yet to be allocated a hearing date has being steadily tracking down from an average of 210 days in 2005, to 136 days in 2010. In contrast, for the cases that proceed to the point of being allocated hearing dates, the average time it takes for these cases to be resolved has remained relatively constant, from an average of 483 days in 2005, to 504 days in

2010. The median time these cases take to resolve has remained constant in recent years despite the fact that the High Court has been experiencing an increase in the applications of cases that are complex (such as social welfare claims, leaky homes claims).²¹

¹⁸ For example see Grant, above n 2, at 9.

^{19 Data shows (as it would naturally follow from the data above) that the}

^{number of civil court filings have similarly increased over this period of}

^{time, from 1,306 in 2005, to 2,168 in 2010, an increase in civil filings in the}

^{High Court of 66 per cent.}

^{20 The median value represents the value that is the mid-point of the data}

^range.

^{21 Cases such as leaky homes and social welfare cases are more complex than}

^{others because they often involve multiple parties, are high value, the}

^{issues in dispute are complex, and the law surrounding them is uncertain.}

^{District Court Data}

Figure 3: National data for the number of cases initiated by statement of claim or notice of claim (from 1 November 2009) disposed of each year in the District Court.

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^{The past six years has seen a steady decrease in the number of these}

^{specific types of cases disposed in the District Court, from 31,486 in}

^{2005, to 21,909 in 2010 (a decrease of 30 per cent). Further, most of these}

^{types of cases in the District Court do not proceed to the point where}

^{they are allocated a hearing date, with only 277 (one per cent) of cases}

^{last year falling into this category. The substantial decline in the number}

^{of cases disposed in the District Court is opposite to the trend observed}

^{in the High Court. Substantial changes were made to the District Court}

^{rules of procedure which came into force in 2009.22 While there has been}

^{some ancedotal reports23 from the profession that these reforms have not}

^{been effective in their aims to reduce delay and cost, the number of civil}

^{cases disposed by the District Court has been tracking down since 2005.}

^{While it is beyond the scope of this paper to investigate the reasons for}

^{this marked decline, this data does lend some support to the view that}

^{for claims under $200,000 litigants are turning to other forms of dispute}

^resolution.

²² District Court Rules 2009, see in particular R 1.3 which states the purpose of the rules changes “is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”.

²³ For example, comments made by some members of the profession at a forum entitled “Managing the High Court’s Civil Caseload: A Forum for Judges and the Profession” (Dunedin, 24 August 2011) expressed the view that the recent District Court changes have been problematic and have not improved the rate of progression of civil cases and the manner in which they are managed.

^{Figure 4: National Data for the median number of days from filing to resolution}

^{in the District Court.}

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For those cases that were resolved prior to the allocation of a hearing date in 2010, they took an average of 232 days (approximately eight months) to resolve.²⁴ For the small percentage that proceed to the point of being allocated a hearing date, the average time it takes for these cases to be resolved has decreased from 543 days in 2005 to 521 days in 2010. As many cases disposed of last year were filed before the rule changes took effect, the impact of the rule changes will not be reflected in the 2010 data presented above.

Summary of the main trends

In summary, for the District and High Court, most civil cases initiated by statement of claim or notice of proceeding do not proceed to the point of being allocated hearing dates and are resolved relatively quickly. Nationally in the High Court last year, those cases resolved prior to the allocation of a hearing date were resolved in a median time of 136 days (accounting for 84 per cent of these specific types of cases disposed), with the remaining that proceeded to the point of being allocated hearing dates taking a median of 504 days to resolve (accounting for 16 per cent of these types of cases disposed last year). This data would seem to suggest that many cases are resolved within the quidelines set down by the Rules Committee in the mid 1990s (that 75 per cent of cases be disposed of within 52 weeks of filing, 90 per cent within 65 per cent and

²⁴ Anecdotal evidence suggests that lawyers do not routinely file notices of discontinuance in a timely manner in District Court proceedings, and often it is discovered that the proceedings have come to an end only after enquiries from the Court. As such, this data likely over-represents the true time it takes to resolve these cases.

100 per cent within 78 weeks). ^{25 26} However, given the median length of time is 504 days for those that proceed to the point of being allocated a hearing date(s), clearly a small porportion are failing outside the desired upper limit of 78 weeks for resolution. Further despite a substantial increase in disposal rates (and correspondingly filing rates), there has been no similar increase in overall median disposal times, suggesting increasing efficiency.

In the District Court, those cases that were resolved prior to the allocation of a hearing date were resolved in a median of 232 days last year (accounting for 99 per cent of the cases) with those allocated hearing dates taking 543 days on median to resolve (accounting for one per cent of the cases). Unlike the trend observed in the High Court, however, there has been a substantial decline in civil disposal rates in this court.

III Why are some cases slower to progress than others?

Overall, the data presented above would indicate a large proportion of civil cases are resolved in a relatively timely manner, but a small subset are slow to proceed. Further research is required to examine the nature of these cases and why they are slow to resolve, but based on anecdotal evidence these are likely to be the complex (whether legally complex, or complex due to the parties’ and lawyers’ motivations) and high value claims. While the data above raises some concerns, the lack of empirical research in New Zealand means that it is impossible to know exactly what kind of cases are slow to resolve and why. There are many factors that are likely to have an influence on the pace of civil litigation, and it is important that no factor is looked at in isolation from the justice system as a whole. While the specific causes of slow progression times for some cases in New Zealand is unknown, research from other jurisdictions can inform us of the possible reasons for slow progression.

Lack of judicial control over proceedings

Research from overseas, and in particular from the United States, repeatedly identifies early and continuous judicial control over proceedings as a crucial factor in reducing case progression times. For example, in a 1988 study of trial courts in New Jersey, Colorado and California, the judicial characteristics that were considered by lawyers

²⁵ The Rules Committee is a statutory body comprised of senior members of the Judiciary, the Attorney-General, the Solicitor-General, and representatives from the Ministry of Justice and the profession. This body was established by virtue of 51B of the Judicature Act 1908, and is responsible for overseeing and reforming when necessary the procedural rules in the District, High, Court of Appeal and Supreme Court.

²⁶ However, see John Hansen “Courts Administration, the Judiciary and the Efficient Delivery of Justice [2007] OtaLawRw 2; (2008) 11 Otago Law Review 351 at 353, for an opposing viewpoint, that even though the timeframes set down by the Rules Committee have been shown to be achievable, “few hearings are held within those timeframes”.

and judges to have the greatest influence on trial length included decisiveness, the extent to which a judge exercises control over the trial, and whether other docket matters are allowed to interrupt a trial.²⁷ This finding is supported by research from Australia which suggests that timely dispute resolution is put most at risk when litigants and their advocates are allowed to control the pace of proceedings, largely because slowing down proceedings may be in the interests of one of the parties (and thus used as a tactic),²⁸ or in the interests of the lawyers.²⁹ Although New Zealand already has a case management system in place,³⁰ there are other ways in which the powers of judges to move cases expeditiously through the court process can be augmented. In a recent Australian study, it is noted that because party control over proceedings is so entrenched, effective case management might only be achieved by statutory reform obliging, rather than merely empowering, judges to control the pace of proceedings.³¹ Other possible solutions include obliging judges to refuse requests for adjournments where counsel are not prepared and do not have a good reason for not being prepared, or imposing sanctions on counsel for causing unnecessary delay. Given the concerns over civil case progression times, the judiciary are presently investigating changes to the judicial case management practice in New Zealand. These proposed reforms are discussed in the next section.

Discovery processes

Overseas research frequently cites discovery processes as a major factor that contributes to delay, especially in large commercial disputes.³²

Overseas research has also demonstrated that the discovery process is becoming increasingly complex, which in turn, increases the time it takes to resolve cases. The complexity of the discovery process is argued to be largely a result of the electronic era and the increasing complexity of commercial transactions, resulting in a large number of documents that are discoverable in civil disputes.³³ Given the quantities of documents that are discoverable in High Court cases under current New Zealand discovery rules,³⁴ this process inevitably will add to the time it takes

²⁷ Dale Sipes and Mary Oram “On Trial: The Length of Civil and Criminal Trials” (National Center for State Courts, Virginia, 1988) at 53–54. See also Steven Gensler “Judicial Case Management: Caught in the Crossfire” (2010) 60 DLJ at 669-744.

^{28 Callinan, above n 9, at 25.}

^{29 Marfording and Eyland, above n 9, at 293.}

^{30 The rollout of the Case Management System (CMS) to all District Courts}

^{was completed in 2003. Ministry of Justice “Report of the Ministry}

^{of Justice Baseline Review” (2004) <http://www.courts.govt.nz/}

^{publications/global-publications/r/report-of-the-ministry-of-justice-}

^{baseline-review/3-the-ministrys-working-environment>.}

^{31 Marfording and Eyland, above n 9, at 295.}

^{32 See for example Beisner, above n 10, at 563-581.}

^{33 Ibid, at 550.}

^{34 Judicature (High Court Rules) Amendment Act 2008, Rule 8.18 requires}

cases to progress through the system. However, given the concerns that have been raised about discovery processes in New Zealand, reforms aimed to reduce delays and cost of discovery will be implemented in New Zealand in 2012. These reforms are discussed in the next section.

Demand on court resources

In New Zealand, while some specialisation occurs at the District Court level (for example, judicial warrants are issued are issued for family, civil, youth and jury hearings), judicial time is divided between the civil and criminal jurisdictions. For example, in the High Court, 34 per cent of judicial sitting time is spent on civil cases, 34 per cent in criminal cases, with the remaining spent on other categories of cases such as appeals (civil and criminal) and applications for judicial review.³⁵ Given that court resources are finite, it is inevitable that the demand on court resources in other areas will have an impact on the judicial time that can be devoted to hearing civil cases. For example, estimated hearing days for criminal trials increased from 1,349 in 2006, to 1,993 in 2010, and as a consequence more judicial time has to be dedicated to hearing these cases.³⁶ It may be tempting to argue that simply adding more judges will result in greater efficiency in the civil jurisdiction. American researchers, however, have discovered that the consequences of reducing court congestion in this way are counter-intuitive; freeing up court time may provide an incentive for more people to file claims, thus increasing (or at least not decreasing) the demand on court resources.³⁷ It has even been suggested that reducing the number of cases per judge may result in a reduction in productivity of existing judges.³⁸ Therefore, it follows that reforms in the civil justice jurisdiction ought to focus on making the use of existing court resources more efficient. Increase in case complexity

Some commentators argue that civil cases take longer to resolve than they did in the past as litigation has become increasingly more complex.³⁹

The reasons for this perceived or real increase in litigation complexity, however, is less clear. Changes in technology (such as the use of emails increasing number of documents potentially discoverable; large multi- company and international business agreements), uncertainties in the

that that parties must make an affidavit of all documents that are in (or

^{have been) in their possession that relate to the proceedings in question.}

^{35 Forrest Miller “Managing the High Court’s Civil Caseload: A Forum for}

^{Judges and the Profession” at paragraph 18. (Paper presented to members}

^{of the legal profession, Dunedin, New Zealand, 24 August 2011).}

^{36 Ministry of Justice “High Court Workload: December 2010” (2010)}

^{<http://www.courtsofnz.govt.nz/from/statistics/statistics-2010/10-}

^{12-High-Court-Workload-Info.pdf>.}

^{37 Thomas Church and others Pretrial Delay: A Review and Bibliography}

^{(National Center for State Courts, Virginia, 1978) at 20; See also George}

^{Priest “The Simple Economics of Civil Procedure” (1999-2000) 9 Kansas}

^{Journal of Law & Public Policy 389.}

^{38 Church and others, above n 37 at 20.}

^{39 Hansen, above n 26, at 359.}

law itself and even perhaps lawyer behaviour (defensive lawyering, and lack of litigation experience resulting in exacerbation of the complexity of the legal issue at hand) may all contribute. Several studies from overseas found that case complexity is a factor influencing court delay in civil trials.⁴⁰ However, some researchers have concluded that case complexity is not a significant factor, and that the courts which process simple cases quickly, also process more complex cases quickly.⁴¹ More investigation is needed into the nature and extent of complex civil cases in New Zealand and whether specific reforms are required to better manage the progression of these types of cases through the court system.

Lack of judicial specialisation

It is been argued that the lack of judicial specialisation in New Zealand courts is a factor that slows civil disputes progressing through the court system.⁴² The main arguments in favour of specialisation are that it will improve efficiency and also the quality of judicial decision-making.⁴³

These arguments, which are well versed in the international literature, however are yet to receive robust empirical validation.⁴⁴ Despite this fact, the view that specialisation naturally results in enhanced efficiency and quality is one of the main reasons why some individuals are advocating for the establishment of a specialist commercial court in New Zealand. For example, Barrister Anthony Grant believes that the highly technical nature of many civil disputes entails that “the age of the generalist has passed”,⁴⁵ and suggests that litigants are wary of generalist judges, causing them to opt for alternative dispute resolution procedures such as specialist arbitration.⁴⁶ Anecdotal evidence suggests litigants are increasingly choosing this option over formal court procedures, despite the risks involved in forgoing trying the dispute in court, such as limited rights of appeal. However, there is also strong opposition to judicial specialisation as a solution to improve civil case progression times on the basis that it risks the impartiality of a judge’s assessment of an individual case.⁴⁷ Further, one has to question whether a country the size

⁴⁰ Sipes and Oram, above n 27, at 37; Callinan above n 9, at 23.

^{41 Steven Flanders and Others Case Management and Court Management in}

^{United States District Courts (FJC-R-77-6-1, 1977) at 18–19.}

^{42 For example this was a view expressed by members of profession at the}

^{“Civil Litigation in Crisis – Beyond the Crisis” Conference above n 1.}

^{43 Lawrence Baum “Probing the Effects of Judicial Specialization” (2009)}

^{58 Duke Law Journal 1667 at 1676; Marfording and Eyland above n 9, at}

^346.

^{44 For example see Baum above n 43, at 1668-1684; Lawrence Baum “Judicial}

^{specialization, litigant influence, and substantive policy: The court of}

^{customs and patent appeals” (1976-1977) 11 LSR 823; Jeffrey Stempel}

^{“Two cheers for judicial specialization” (2005) 61 BLR 67.}

^{45 Grant, above n 2, at 9.}

^{46 Ibid.}

^{47 Lawrence Baum “Probing the Effects of Judicial Specialization” (2009) 58}

^{DLJ 1667 at 1678.}

of New Zealand has the resources to have specialist judges, and whether the lack of specialisation is actually a significant factor in slowing cases progressing through the system.

Counsel behaviour

Research unequivocally shows that the style and work habits of lawyers have a significant influence on the duration of civil proceedings. Further, inexperienced counsel may raise their client’s hopes of success in the proceedings, and only come to a more reasoned view of their client’s chances of success well into the proceedings, when much time (and money) has been spent. However, the conclusions of overseas researchers do not always point in the same direction. While some studies suggest that counsel inexperience causes an increase in trial duration,⁴⁸ it has also been posited that inexperienced lawyers may settle more often than more experienced lawyers and may therefore actually reduce delay.⁴⁹ Reforms aimed at increasing counsel competency may include introducing a certification process for trial advocates, ongoing and mandatory continuing legal education, providing courts with the power to order barristers to meet the whole or part of any wasted costs, and imposing on counsel a “duty to cooperate”.⁵⁰ However, caution must be exercised when considering imposing duties and liabilities on lawyers, because of the risk of encouraging “defensive lawyering”,⁵¹ which will undoubtedly slow proceedings even further.

Local legal culture

“Local legal culture” refers to informal court system attitudes, practices, expectations, practitioner incentives, and professional courtesy. In New Zealand our current legal procedures and behaviour are not necessarily geared towards efficiency. In fact, some of the obligations on legal counsel may result in defensive lawyering, which in turn may prolong court procedures. For example, Rule 13 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“The Rules”)⁵²

⁴⁸ Ronit Dinovitzer and Jeffrey S Leon “When Long Becomes Too Long: Legal Culture and Litigators’ Views on Long Civil Trials” (2001) 19 Windsor Y B Access Just 106 at 138.

^{49 Hans Zeisel “Court Delay and the Bar: A Rejoinder” (1969) 53 Judicature}

^{111 at 113.}

^{50 Christopher Finlayson “Counsel’s Duty to Cooperate – Achieving}

^{Efficiency and Fairness in Litigation” (Speech at New Zealand Bar}

^{Association Conference, 12 September 2009); Toby Futter “The proposed}

^{‘duty to cooperate’ in civil litigation: Are things really that bad?” (2010)}

^{139 NZ Lawyer 14.}

^{51 Grant, above n 2, at 9.}

^{52 These are the rules, made in accordance with the Lawyers and}

^{Conveyancers Act 2006, which govern solicitors’ and barristers’}

^{obligations of practice in New Zealand. A breach of these rules may result}

^{in a complaint been made to the New Zealand Law Society, who have the}

^{power to impose certain binding sanctions (for example, order a written}

^{states that:}

The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer.

Similarly, Rule 13.3 states:

Subject to the lawyer ’s overriding duty to the court, a lawyer must obtain and follow a client’s instructions on significant decisions in respect of the conduct of litigation. Those instructions should be taken after the client is informed by the lawyer of the nature of the decisions to be made and the consequences of them.

Further, given the obligations on counsel to keep their clients informed of the litigation and the requirement that they discuss alternatives to litigation (Rule 13.4), some counsel may understandably take an overly cautious approach to the case. Such caution may not enable the issues in dispute to be identified early, and for the case to proceed at a faster pace.

However, barristers and solicitors have an overriding duty to the court, and they must facilitate the administration of justice (Rule 2). It is often mentioned in the literature that the support of professionals from within the court system is essential to the success of reforms aimed at reducing civil case processing time.⁵³ That is, externally imposed reforms will only be effective if the local legal culture responds to the changes and is committed to instituting them. For example, Geoff Davies has warned that there may be a subconscious reluctance on the part of lawyers (due to their adversarial mindset, legal training, and perception of litigation as a business) to embrace reforms, which they perceive will reduce the fees they are able to charge.⁵⁴ Further, John Hansen argues that New Zealand’s implementation of its Case Management System has achieved “only limited success” because not all judges, administrators and lawyers have embraced the system.⁵⁵ On the other hand, several overseas studies suggest that case progression times can be improved where lawyers, judges and court administrators all share the goal and expectation of reducing delay.⁵⁶ It is, therefore, important that reforms aimed at improving case processing times be accompanied by initiatives

apology, order payment of a fine, order the lawyer be struck off the roll

^{and barred from practising).}

^{53 For example, see Ronit Dinovitzer and Jeffrey S Leon “When Long}

^{Becomes Too Long: Legal Culture and Litigators’ Views on Long Civil}

^{Trials” (2001) 19 Windsor Y B Access Just 106 at 113.}

^{54 Geoff Davies “Civil Justice Reform: Why We Need To Question Some}

^{Basic Assumptions” (2006) 25 CJQ 32.}

^{55 Hansen above n 26, at 356.}

^{56 Barry Mahoney Changing Times in Trial Courts: Caseflow Management and}

^{Delay Reduction in Urban Trial Courts (National Center for State Courts,}

^{Virginia, 1988) at 197-205; Horace Gilmore “Comment Upon ‘The “Old”}

^{and “New” Conventional Wisdom of Court Delay” (1982) 7 The Justice}

^{System Journal 413 at 415; Steven Flanders “Modelling Court Delay”}

^{(1980) 2 Law & Policy Quarterly 305 at 316.}

focused on creating a legal culture that is supportive of delay reduction initiatives.

IV Current reform initiatives

The issue of perceived (or real) delays in resolving civil disputes is not a new one. In fact, the Judiciary and the Rules Committee has been investigating for a period of time how to improve the efficiency of the civil justice system. While much speculation remains about what causes protracted litigation in some cases, two causes that are frequently cited in the literature are discovery processes and case management practices. As such, two of the major areas of reform currently being investigated are changes in the discovery procedures and judicial case management procedures.

Discovery processes

Given the concerns about the inefficiency of current civil discovery processes, significant changes are being implemented in 2012 with the aim of improving the quality of discovery and reducing the time it takes and the cost to litigants. These reforms, which have been developed by the Rules Committee over a period of time since 2002 and with significant input from the profession, arose over concern about the Peruvian Guano “train of enquiry” test used in New Zealand.⁵⁷ This test stipulates that every document that is either directly or indirectly capable of supporting or harming a parties’ case, or which may lead to a “train of inquiry” that would support or harm a parties’ case, is discoverable. This test, therefore, results in many documents being discovered that are peripheral to the issue(s) in dispute. Time and money is expended not only in collating these documents, but also in the other side sifting through them and locating those that are relevant to the dispute. As such, other countries in the commonwealth have abandoned the Peruvian Guano “train of enquiry” discovery test. For example, the United Kingdom has opted for an “adverse documents” test, where only documents that that are relied on by parties’ to advance their case and those that are detrimental to the case are discoverable.⁵⁸ However, despite these changes overseas there are anecdotal reports that the change in the discovery test has had little or no effect in streamlining discovery processes, as counsel behaviour has not changed, nor has it been enforced upon them.⁵⁹

In light of developments overseas and concerns with the process in New Zealand, the changes that have been approved by the Rules Committee (High Court Amendment Rules (No 2) 2011) will result in all counsel providing initial disclosure when pleadings are submitted. These

⁵⁷ Compagnie Financiere du Pacifique v The Peruvian Guano Co (1882) 11 QB

^55.

^{58 The United Kingdom has, however, retained the right of judges to order}

^{a “train of inquiry” test in cases where it is deemed necessary.}

^{59 Lord Rupert Jackson “Review of Civil Litigation Costs: Final Report”}

^{(Report for the Ministry of Justice, England, 2010).}

pleadings must include all the documents referred to in the pleading and documents they will rely on (if in counsel’s possession). At the first case management conference, an order for either standard or specific disclosure will be made. Standard disclosure requires counsel to disclose all documents that they rely on (or another party relies on) to support their case, and documents that adversely affect their case (or another parties’ case). Alternatively, a judge may order specific disclosure, where the order may be for more or less documents to be disclosed than the requirements of standard discovery, depending on the facts of the case.⁶⁰

The discovery reforms also will enable the electronic listing and exchange of documents. Finally, under Rule 8.2 counsel will have a duty to co- operate in the discovery process. These reforms represent a significant change, and one if embraced by the profession, should improve the efficiency of the discovery process, and in turn, the pace of civil litigation.

Case management

The second major reform is the proposed changes to the present case management procedures in the High Court. Judicial case management was introduced into New Zealand in the 1990s as it was seen as necessary to increase the speed at which cases progress, aided by judicial monitoring of compliance with procedural orders and litigation processes. Despite having a case management system in place, concerns have been raised about its effectiveness as a large proportion of case management is largely being left to legal counsel.⁶¹ For example, there are anecdotal reports that compliance with discovery orders is often not enforced until the courts hear complaints from frustrated legal counsel.⁶² The problem with case progression being lawyer-driven is that the goals of a lawyer (such as lack of time due to overloading themselves with other case commitments, purposeful delay tactics on instruction of the client – or themselves – to force the other party to abandon the case or settle), are not always commiserate with aiding the administration of the courts and assisting with the speedy resolution of a case. While there is debate about whether active judicial case management does actually facilitate litigation process, and whether it is an appropriate role for a judge, the prevailing view is that judicial case management is vital to ensure that cases proceed in a timely manner.⁶³

⁶⁰ See The Rules Committee “Draft Rules on Discovery (v 1.18) – High Court Amendment Rules (No 2) 2011” (2011) Courts of New Zealand Rules Committee <http://www.courtsofnz.govt.nz/about/system/ rules_committee/consultation/High-Court-Amendment-Rules-No-1-

^{2011-to-accompany.pdf> for the new rules on discovery.}

^{61 Miller, above at n 35, at paragraph 22.}

^{62 For example several members of the profession at the “Civil Litigation in}

^{Crisis – Beyond the Crisis” Conference, above n 1, commented that this}

^{was a factor slowing case progression.}

^{63 Sipes and Oram, above n 27, at 53–54. But see Steven Gensler “Judicial}

^{Case Management: Caught in the Crossfire” 60 DLJ at 670-743 for a}

^{discussion of the pitfalls of having highly prescriptive judicial case}

Given concerns about delays in obtaining civil trial dates in Auckland, the Chief High Court Judge Justice Winkelmann commissioned research on the progression of a subset of 330 civil cases resolved between 2008 and 2009.⁶⁴ The main finding of this research was that cases settle predominately against the trial date, with the majority of cases that are resolved in this manner settling in the period between when the trial date is confirmed and the date of the hearing.⁶⁵ As a consequence, changes have already been implemented to increase loading rates (the number of cases assigned to the same trial dates), with the knowledge that only a few will eventually proceed to trial, with the remaining settling. This change has already resulted in a substantial decrease in waiting lists for short cause cases (where predicted trial length is five days or less) in both Auckland and Wellington.⁶⁶ Based on their work, and input from the profession, the Judiciary and the Rules Committee have identified that early identification of the issues in dispute is essential to promote efficient case resolution. As such, several changes are being proposed in an effort to promote efficiency. These include moving the first conference date out to between 10 and 12 weeks after filing (to allow parties to make progress before the conference), setting down a trial date at the first conference for the majority of cases, making issue identification a key component of the judicial conference(s), for complex cases establishing an “issues conference” where the issues are clearly identified and tested, and closer management of timetabling and compliance with procedural steps.⁶⁷

These proposed reforms, combined with the changes to the discovery process, represent the biggest changes in the management of civil cases since case management was first introduced. While these proposed reforms represent a bold step forward, their success will rely on a fundamental shift in counsels’ litigation attitude and behaviour. To this end, overseas jurisdictions that have similarly battled to improve the civil justice system have discovered that it can be difficult to modify ingrained behaviours and attitudes.

V Conclusion

Research from court users and opinions expressed by some among the profession raise serious concerns about the pace of civil litigation in New Zealand. The data presented in this paper, however, paints rather a different picture. In particular, it appears that this perception is

management practices.

^{64 Two High Court Judges, Miller and Venning JJ conducted this research.}

^{65 Forrest Miller “Civil Case Management” (paper delivered to LEADR}

^{Conference, Wellington, November 2010).}

^{66 Miller, above n 35, at paragraph 72.}

^{67 Members of the Judiciary are presently conducting consultation about}

^{these proposed changes with the profession. For a discussion of the}

^{Case Management project presently underway see The Rules Committee}

^{“Committee Minutes - 21 February” (2011) Courts of New Zealand}

^{Rules Committee <http://www.courtsofnz.govt.nz/about/system/}

^{rules_committee/meetings/21-February-2011.pdf>.}

not completely borne out as many cases are resolved in a fairly timely manner, and only a subset appears to be slow to resolve. Given the dearth of empirical evidence that plagues this field, however, we can only speculate to the causes of slow resolution for some cases. While significant reforms in this area should improve the efficiency of the civil justice system, further research is clearly needed to understand the dynamics of civil case resolution, particularly the factors that hamper or aid case resolution. Further work is also required to understand why civil disposal rates in the District Court have declined by 30 per cent since 2005, a figure on face value that tends to indicate those with lower end claims are turning away from the courts to other forms of dispute resolution. While it is critical that our civil justice system is efficient and is one the public has confidence and faith in, case progression is only one measure of performance. There is a point at which a focus on speed and efficiency undermines the just and fair determination of a dispute, and future reforms and research in this area must always bear this principle in mind.