The Rules Committee, which is responsible for New Zealand's court rules, has proposed “once in a generation" reforms to civil litigation procedure in the High Court, District Court and Disputes Tribunal. The Committee has said that the proposed reforms are intended to address barriers to accessing civil justice.
The Committee has published its proposed reform here. The proposals are far-reaching, and many of the suggested reforms will have significant implications for commercial parties who use the courts to resolve their disputes.
The Committee has called for submissions on the proposals by 2 July 2021. We will be making submissions, and we encourage all businesses and individuals who participate in, or who are affected by, civil litigation processes to also make submissions. Please contact our team if you would like assistance with your submission.
Proposed High Court reforms
The Committee proposes that:
Discovery will be abolished and replaced with an adapted form of initial disclosure.
Judges will hold initial issue conferences, where the parties will be expected to outline their case and the evidence that supports it.
Interlocutory applications will be presumptively dealt with on the papers, without any hearing.
Witnesses at trial will give evidence by affidavit rather than by brief of evidence, with oral evidence only where there is a factual dispute.
Witnesses will not address the chronology of events in their evidence, which will instead be dealt with in a separate memorandum from counsel.
There will be limits on the use of expert witnesses.
Proposed District Court reforms
The Committee acknowledged that civil litigation in the District Court is “not working well", and that litigants and lawyers “lack confidence" in the District Court. In contrast to the High Court, the Committee does not propose to change the District Court rules. Instead, it proposes to:
Appoint a Principal Civil District Court Judge, start using part-time Deputy Judges, and build civil expertise in the District Court registry offices.
Introduce new protocols that a plaintiff must follow before litigation can be commenced in the District Court, starting with debt collection claims.
Proposed Disputes Tribunal reforms
The Committee envisages the Disputes Tribunal becoming a new “Community Court" or “Small Claims Court" (which it had originally been called, before being renamed the Disputes Tribunal). It also proposes:
Increasing the Tribunal's jurisdiction form $35,000 to $50,000, or possibly even $100,000.
Potentially changing the Tribunal's remit, which is currently only to “have regard" to the law, and instead require it to “give effect" to the law.
Considering greater appeal rights to the District Court.
Changing other procedural requirements, including having hearings in public, greater use of Tribunal experts, and the ability to award costs.
In its last round of consultation, the Committee sought views on proposals to introduce an inquisitorial process into the High Court and District Court, require all civil claims to be commenced by way of summary judgment, introduce short form trials in the High Court, and replace briefs of evidence with “will say" statements. The Committee has now dropped all of these proposals, and indeed has moved in the opposite direction in respect of briefs of evidence. It has instead proposed a new suite of reforms, which it says have been proposed to ensure a more comprehensive response to current barriers preventing access to justice for all.
We support reform that ensures greater access to justice. The rule of law is a bedrock principle, and it is critical that all people have access to civil justice so that legal wrongs can be redressed. We welcome the Committee's review of the rules through the lens of access to justice.
At the same time, however, it will be important to ensure that any reform places sufficient emphasis, not only on access, but also on justice. The rules and procedures must ensure that there is a fair process, where the parties are able to fully put their case and test the opposing party's case, and where the losing party can say that, although they lost the case, at least they had an opportunity to be fully heard.
That is particularly the case for commercial parties, who negotiate contracts and other arrangements against the backdrop that, if there is a dispute, they will have a fair opportunity to resolve that dispute through a system in which they have confidence. New Zealand has an enviable reputation for the quality of its civil justice system, which rests in part on well-tested features of the common law system. In our view, any reform should take care to keep those parts of our system that work well, when considering potential changes.
We will be making submissions to the Committee that focus both on the importance of access, but also on the need for a fair process. We would encourage all businesses and individuals who participate in, or who are affected by, civil litigation processes to also make submissions. Please contact our team if you would like assistance.
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.