The Rules Committee (like the Small Council if everyone was Mace Tyrell) has released a discussion paper called Improving Access to Civil Justice. It is described as an initial consultation with the legal profession in which the Rules Committee seeks comment on four potential areas of reform it has identified in order to improve access to justice by reducing the costs associated with bringing a civil matter to court.
The Rules Committee can’t legislate. The most it can do is modify the High Court Rules. A cynic would say that trying to solve the problem of the excessive cost of civil litigation using the powers of the Rules Committee is like trying to stop a runaway car when all you’re allowed to press is the button for air conditioning. But I’m not a cynic. Rules changes are the best we can do until half the legal profession realises it doesn’t need to make as much money as it does and that paying, say, a 29 year old lawyer at a large law firm significantly more money per year than his, say, 60 year old maths teacher mother, isn’t an appropriate reflection of their respective contributions to society.
Anyway, a lot of good can probably be brought about by rules changes. This present consultation is important because it’s the start of a process that *will* make changes. There is a new Chief Justice at the head of the Committee, driving a topic she has spoken on a lot, there is momentum to do something (or at least as much momentum as you can get in a Committee that only meets four times a year), and there is presumably political (judicial?) capital in the bank. The last seven or eight years are full of Minutes of Rules Committee meetings that read like this:
Well, guess who’s in charge now?
The four options the Committee seeks feedback on are:
- Introducing a short trial process in the High Court and/or modifying the existing short trial process in the District Court.
- Introducing an inquisitorial process for the resolution of certain claim in the High and District Courts.
- Introducing a requirement that civil claims be commenced by a process akin to an application for summary judgment. (Or, as I like to think of it, the elephant-trap-just-inside-the-front-door option.)
- Streamlining current trial processes by making rule changes intended to reduce the complexity and length of civil proceedings, such as by replacing briefs of evidence with “will say” statements, giving greater primacy to documentary evidence, and reducing presumptive discovery obligations.
But even if it’s inevitable that Something Must Be Done, it is still very much up in the air what that Something is. As the Committee points out, it does not know which (if any) of the four options it favours. Hence the consultation.
The Committee has called for submissions by 1 May 2020 and details about how to make a submission can be found in the discussion paper. As the Committee points out, input in these matter from the profession is important. Who knows, I may well be able to bring myself to say something vaguely serious about options 2 and 3 (and why I think they are Bad Ideas). Even if, like me, your experience with pure civil litigation is seeking adjournments in the duty judge list, your experiences or research is no doubt relevant to the task.
In the meantime, below are six ways I figure could improve access to justice by reducing the costs associated with bringing a civil matter to court. You are only allowed to read them if you promise to send something serious to the Rules Committee.
The crime option
Reduce the cost of bringing a civil matter to court by initiating it as a private prosecution or, better yet, get the state to bring it for you. While this may be equally expensive you will have eliminated the cost of a civil proceeding. Boundary dispute? That’s criminal trespass. Breach of contract? That’s obtaining by deception. Arguing that New Zealand is forum non conveniens? Did you know that’s actually a form of treason?
The lightning round option
Gamification is in these days. All witnesses enter the witness box at the same time. They are each given a buzzer. Lawyers take it in turns to ask ten questions each. First witness to buzz in gets to answer. The court must accept the answer given. At the end of a round, the witness who answered the fewest questions gets eliminated. The rounds continue until there are no witnesses left. Limit damages awards to a Gold Coast holiday package or a new Toyota Rav 4.
Expanded “will say” statements
Instead of lengthy briefs of evidence being an exhaustive written record of a party’s evidence, the Rules Committee has sought comment on greater use of “will say” statements. “Will say” statements give a summary of the oral evidence a witness will give at the hearing (rather than it being a full record of their evidence). But why stop at what a witness will say? Further subheadings would lead to the more efficient conduct of the trial. We need to know what a witness:
- Will say.
- Won’t say.
- Will remember.
- Won’t remember.
- “Won’t remember”.
- Won’t say at first but will admit when shown the receipts.
- Will say but will regret later.
- Won’t say now but will blurt out at trial for the first time.
The Luminaries Rule
In Eleanor Catton’s The Luminaries, each chapter decreases in length, starting with one chapter 360 pages long and ending with a chapter of just two pages. As a general rule, anything that prods civil pleadings to resemble prize-winning literature should be encouraged. And a Luminaries Rule could bring significant efficiencies. A statement of claim can be of any length but a statement of defence may only be half as long. Plaintiffs’ briefs may only be half the length of a statement of defence. Defendants’ briefs only half as long again. Smarter members of the judiciary may be able to predict benefits for judgment-writing also.
Abolish the Evidence Act and the High Court Rules in civil proceedings
A sort of ultra-Libertarian solution to the problem. Why is civil litigation so expensive? Because there are too many rules about how you have to conduct it. That means you need a lawyer to do it, and because lawyers are the only ones who know these rules, they charge lots of money. The very existence of these rules are barriers to efficiency. If anything went, then everything would go. Let people conduct civil litigation however they like and the market will reveal the most efficient way to do things (probably some sort of Hunger Games in the High Court library).
The and/or option
The “just, speedy and inexpensive” determination of claims in the High Court Rules is an unachievable goal. Like the hackneyed old joke that this suggestion is based on: pick any two. But hide that fact by giving court users the illusion of a choice. Amend the purpose of the High Court Rules so that it facilitates the just and/or speedy and/or inexpensive determination of a claim. Then, require the Plaintiff to choose two of the three in their statement of claim (at their preference). Then, require the Defendant to select one from the two options chosen by the Plaintiff. That quality becomes the key metric to be used by the judge case-managing the claim.
Anyway, I’ll give you a reminder about submissions in March next year.
Strictly obiter 