The Rules Committee is now inviting comment from the legal profession on its proposals for what the Chief Justice has termed a generational reform of civil dispute resolution.
The proposals respond to the concerns expressed by over 40 submitters to an initial consultation paper in 2020, including the Law Society as well as numerous practitioners.
Submitters shared the Committee’s concern at what the Law Society termed in its submission the “justice gap” that has been “slow-burning” for at least a generation. A number of causes for that ever-widening gap were identified by submitters. One of these, particularly relevant to the Committee’s remit, is the high cost of lawyers and the significant costs associated with complying with procedural requirements. Another, related, cause is the “maximalist” culture submitters identified as pervading the practice of litigators in New Zealand.
The Committee’s draft proposals look to combat both of these barriers to civil justice. Overall, the proposals are aimed at creating a range of forums for the resolution of civil disputes. The aspiration is for the expense associated with complying with the procedural requirements in place at each level to be proportionate to the value of the disputes heard in that forum.
Within each forum, the Committee’s goal is for the particular procedures adopted in each individual case to match the importance to the parties of that dispute, in both theory and practice. The more valuable and important the dispute, the more onerous the procedures that will apply, so as to avoid error and ensure “justice” is done.
The Committee’s detailed proposals seeking to give effect to this vision are detailed in the consultation paper, which is available together with other information on the Courts of New Zealand website.
At the highest level, these are:
- recommending that the government enact legislation increasing the jurisdiction of the Disputes Tribunal and enhancing the Tribunal’s role in the civil justice system, positioning it as New Zealand’s primary civil trial court for disputes of up to at-least $50,000 in value.
- reforming the District Court to improve its structural ability to deal with civil claims, including by appointing part-time Judges, so as to allow that Court to make effective use of the existing potential for flexibility and tailored procedure found within its current rules.
- significantly streamlining the presumptive model of procedure in the High Court. The existing extensive procedural rules will only apply to more complex cases, which truly warrant them. In other cases the new, less elaborate, approach will apply. This will include replacing discovery with disclosure obligations, an early issues conference featuring substantive engagement by Judges, interlocutories dealt with on the papers, and a streamlined trial process placing much greater weight on the documentary record. Parties will have to justify the need for adopting more onerous obligations in a given case.
These proposals are subject to consultation, and the Committee is interested in receiving the fullest possible engagement from the profession ahead of submissions closing at 5 pm on 2 July 2021. The Committee strongly encourages practitioners to engage in this once-in-a-generation reform process.
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