Improving Access to Civil Justice – a Summary

March 2023

Late last year, the Rules Committee (Committee) released the Improving Access to Civil Justice Report (Report). The Report identified a number of impediments to Access to Civil Justice in New Zealand including:

• Financial barriers;

• Psychological barriers; and

• Cultural and Information barriers.

This article outlines some of the most notable recommendations.

Increasing jurisdiction of the Disputes Tribunal 

The Report recognised the Disputes Tribunal serves an important role in providing dispute resolution for smaller claims, at a low cost to the parties involved. Currently, the Tribunal only deals with claims up to $30,000. The Report recommends that the Tribunal’s jurisdiction is raised to be able to deal with claims up to $70,000 as of right and up to $100,000 by consent.

The Committee outlines key reasons for this change, namely:

• to allow Tribunal claims exceeding $30,000 to not be partially abandoned;

• the Tribunal has capacity for more claims;

• larger claims are unlikely to be more complex; and

• inflation has decreased the value of money.

Reinvigorating the civil jurisdiction of the District Court

The Report identifies a loss of confidence in the District Court’s civil jurisdiction. This is illustrated by only roughly 5-7% of filed matters being defended. Factors identified as contributing to a loss of confidence include a decline in expertise amongst registry staff and a lack of resources to provide a timely judgment.

To address this, the Report recommends the appointment of a Principal Civil District Court Judge. The role of the Principal Civil District Court Judge would be to work with judges and the Ministry of Justice to ensure that the civil registry has proper expertise, and that judges have appropriate time allocated for civil work.

The Report also recommends the appointment of senior practitioners, including King’s Counsel, as part-time Judges to better respond to fluctuations in workflow and enhance the civil expertise of District Court Judges.

Changes to High Court procedures

The High Court’s reputation for providing a high-quality civil justice system remains strong. However, cost and delay were identified as barriers to access to justice. At the heart of these barriers, the Report argues, is a ‘maximalist’ approach to litigation. A ‘maximalist’ approach means that all available procedures are utilised, even when they are not necessary or do not provide proportional benefit to the case. To discourage a ‘maximalist’ approach, the Report’s recommendations are focused on changing rules regarding evidence and Court processes, including:

• “Will say” statements will replace briefs of evidence, and unless otherwise directed, those statements are to be served before discovery orders are made.

• Greater emphasis to be placed on the documentary record for establishing facts, and documents included in an agreed bundle should presumptively be admissible to establish those facts without the need for witnesses to traverse them.

• Evidence from witnesses should be limited to issues of fact unless it is expert evidence to stop the making of submissions through the evidence.

For more information on the Report, please contact Grimshaw & Co.