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Preface

FOR SOME TIME the Law Commission has had on its work programme the broad topic of Abuse of Process. Some work has been done, but the project has tended to lose its place in the queue in favour of more pressing concerns. Our view of the matter as not urgent was partly because of an unusually high number of recent appellate decisions in England and New Zealand which seemed to be resolving some of the uncertainties and getting rid of some of the anomalies that might be thought to justify legislative intervention, and partly because of the unlikelihood of legislative time being found in the foreseeable future for the spring cleaning of a corner the law that is visited relatively infrequently.

On 15 October 2000, however, we were asked by the Ministry of Justice if we could provide an early report on that part of the topic that related to maintenance, champerty and contingency fee arrangements. This request was made because of the relevance of these matters to two reviews on which the Ministry is currently engaged, one of the Law Practitioners Act 1982 and the other of the legal aid regime. It is in conformity with this request that we have hived off as the subject of separate attention the subsidisation of litigation.

The controversial issue is of course whether, and to what extent, there should be permitted the charging of contingency fees by lawyers (and by non-lawyers permitted to conduct litigation for reward, as they are before the Taxation Review Authority and in employment cases). Proper attention to this topic requires the fullest possible consultation and it is particularly in order to ascertain views on a question in respect of which opinions may reasonably differ that this discussion paper is published.

We are conscious that we are publishing this paper in a month when end-of-year congestion and vacation absences make it difficult for those to whom we look for assistance to provide the comment that we need. Even so, in an effort to meet the Ministry’s timetable we request that submissions reach us by 28 February 2001. This should enable the completion of a final report in March 2001 and its publication in April. By that time we are told although a bill setting out new measures governing the legal profession is likely to have been introduced into Parliament, it will still be making its way through the parliamentary process so that its ultimate form will not have been finally determined.

Former researchers Nicholas Russell and Megan Leaf did work on this project. The researcher currently engaged is Michael Josling. The Commissioner in charge of the carriage of the project is DF Dugdale. In preparing this paper we were assisted by a report of an Auckland District Law Society working group convened by Stephen Bryers.