Kiwis deserve a fair deal in court, but civil justice is skewed. That must change

Friday, 6 May 2022

Sarah Sparks is a communications consultant, and works with wāhine toa across Aotearoa.

OPINION: Aotearoa is well overdue for an evolution in how we access civil justice.

There’s no silver bullet, but the reality is that not everyone in our society gets a fair shake when they head to court.

I’m speaking from lived experience as a māmā who has been trapped in a divorce matter in the High Court for eight years, and self-representing for most of that period.

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* Many Kiwis just can't afford to fight rip-offs and sue companies, Justice Minister says

* Missing out on civil legal aid a justice issue, lawyers say

**

Seeking justice under your own steam can be unreasonable and unfair. Wealth, education and ethnicity have an impact.

It looks imbalanced to appear in court yourself opposite a row of lawyers, and it’s wrong when a citizen is forced to that extreme for years on end because there appears to be no other option.

This appears to tilt access to civil justice towards the rich, and puts it beyond the grasp of an ordinary person.

Affordability is the biggest barrier. If you don’t have the money or a kind benefactor to pay for legal counsel and all the fees, you need to accept one of two choices.

Give up. Or stand up.

Legal aid cannot be relied upon to save you; it’s in danger of collapse due to a lack of funding. Litigation funding and legal clearing houses offering services are not commonplace either.

Someone who’s forced to represent themselves in civil court can be easily overwhelmed by the protocols, policies and procedures of the system. There is no playbook.

And the costs are prohibitive: Two applications in the High Court last week cost $1000 to file. By comparison, criminal filings in the District Court are a tenth of that price.

The highly respected World Justice Project ranks Aotearoa in the top 10 out of 139 countries for access to civil justice and affordability, but much improvement is still needed.

Two years ago, Chief Justice Dame Helen Winkelmann said there was “scope for courts to be more imaginative administering civil justice”.

A working group chaired by Dr Bridgette Toy-Cronin​ has now been tasked with developing our first-ever national strategy on civil justice, and the Access to Justice Advisory Group is undertaking public consultation.

Canada’s world-leading example has inspired the planning, and workshops are engaging a broad mix of voices and experiences from the civil justice space.

Recently, lay litigants like myself connected with heavy-hitting national advocates like the Citizens Advice Bureau, Community Law, District Law Society bodies, and the Borrin Foundation.

Wider public feedback is also being sought on this draft strategic plan, which is anticipated to be in place for five years.

It’s crucial that the working group takes a broad view when mapping out the civil justice ecosystem, as separate silos can skew perspectives. A holistic approach should identify gaps by placing people at the centre, rather than the system itself.

There also needs to be meaningful consultation with tangata whenua to embody the principles of Te Tiriti o Waitangi, and incorporate Māori knowledge of kotahitanga, whānau ora and tikanga.

All sorts of diverse communities beyond the legal sector need to be valued, included, and listened to, particularly whānau hauā (disabled) and people who do not speak English as a first language.

Transparency will be important. An annual report on access to civil justice would identify incremental change and help track progress.

Change is possible through collaboration and innovation, and I’m hopeful that the Wayfinding for Civil Justice initiative will help navigate us to a better place.

Because Kiwis deserve to get a fair deal in court.