'No silver bullet' for fairer access to civil justice, says chief justice

Friday, 31 January 2020

Chief justice Helen Winkelmann is leading the call for wider access to civil justice.

Chief Justice Helen Winkelmann says there is no silver bullet to improve civil access to justice, but progress can, and must be made.

Winkelmann, who rarely gives media interviews, starts with a defence of New Zealand's civil legal system, through which ripped-off companies and individuals can seek compensation.

'It's important we don't have the message going out to give up on your system. I don't see that as the issue,' says Winkelmann, who has been a vocal advocate of fairer access to the civil courts, which are too expensive for many middle and lower-income people.

Internationally, New Zealand's civil justice system rated highly, she says, including for the proportion of claims making it through to a full High Court hearing: roughly 10 per cent compared to 1 to 2 per cent internationally.

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'That's regarded as a critical indicator of how well your court system is functioning,' she says.

'If it's bogged down, too slow, people just give up. There's settlement by exhaustion.'

But there was a problem with the dearth of civil cases in the District Court – which can hear civil cases of up to $350,000 – and unacceptable delays in cases being heard.

More judges had been appointed, but that would not be enough.

The last five years had seen a refocusing on the theme of access to civil justice by the judiciary, and lawyers, Winkelmann says.

Attorney General David Parker, and Justice Minister Andrew Little are both interested in the issue, she says.

After World War II access to civil justice was a high policy priority.

'But then it faded from mind,' Winkelmann says.

There's discussion – including by the courts' Rules Committee, which is consulting publicly on ways to increase access to civil justice – on whether New Zealand civil courts should move to a less adversarial, more judge-led inquisitorial model in a bid to make their cost proportionate to the claim was not as radical as it seemed.

'It's actually not that radical in a sense in that we have been evolving into a much more inquisitorial style for civil justice,' Winkelmann says.

'Once upon a time civil litigation was entirely party-driven. There was party autonomy. They could take, and did take when I first came into practice, six to eight years to take a case from beginning through to trial, and the courts would take a hands-off approach.'

Since then judges had exerted guiding hands, and the courts had flexibility to develop their approach.

An example was the creation of the Christchurch Earthquake list, which included judges identifying important cases to be 'rocket docketed' to be completed quickly in order to set precedents other cases could be settled on.

'It was quite well down that inquisitorial model of the judge being very active in helping the judges to sort out the issues, find the experts, etcetera,' Winkelmann says.

But, 'there's no proposal to dump our adversarial system in favour of an inquisitorial system', she says.

Overseas inquisitorial systems are moving to become more adversarial, she says.

'The happy spot might be somewhere in between.'

Winkelmann says there is scope for courts to be more imaginative administering civil justice.

Short-form trials were already possible in the District Court, and one of the proposals of the Rules Committee is to allow that in the High Court.

An optimal system would be designed to minimise the impact that wealth, education, and race had on outcomes, she says, but the issue was wider than the courts.

'Civil legal aid is in need of a funding boost,' she says.

'That's a bit political for me.

'The legal profession has failed to innovate to make itself available to people. I think it's a failure of the market.'

The profession had priced itself out of providing civil legal services to middle and lower income people.

'If it's not the legal profession who innovate, they may find themselves losing their exclusive rights of audience in the court,' she says.

'I think that's an existential challenge to the profession and they need to start coming up with models that meet these needs.'

Some support the idea of a cheap, fast, online money court.

Winkelmann fears that would lose some of the human, and public, aspects of justice the courts deliver.

'Are online courts a solution? I don't believe so.

'It's not a silver bullet,' she says.

'We can't kid ourselves there's a civil silver bullet. There isn't.

'This is not a problem that's going to be solved. Full stop. It's a problem we are going to carry on engaging with forever. We just have to make progress,' Winkelmann says.