Court reform needed as delays mount

The NBR reports on significant issues within the courts system, especially with significant delays.

As someone who is now in his seventh month of waiting for a judgement in a rather straight forward defamation case I certainly have an interest in court reform. Justice delayed is justice denied.

Giving judges protected time to write decisions, limiting Queen’s Counsels’ workloads and using technology should be all be explored to cut down delays in the court system, Otago University researchers say.

A new study on civil litigation shows High Court cases, on average, take about six months from start to finish. However bankruptcies, liquidations and appeals are included in this figure, so for the more standard class of cases – general proceedings – the average is 13 months.   

My case is now well past six months and entering its seventh month. The whole process for that trial took two years. And I expect it will take even more.

The research led by University of Otago Legal Issues Centre director Bridgette Toy-Cronin found 18% of general proceedings, which encompass everything from leaky building litigation, trust disputes to general commercial cases, took at least 18 months.

Dr Toy-Cronin says the research, which involved digging through court files and talking to judges, lawyers and litigants, found many areas for improvement.

“One of the key findings is that, when we talk about a delay in court, we talk about it as if it is just one thing but the reasons are diverse and there isn’t a silver bullet.”

However, she says one area in need of investment is technology as many other jurisdictions have taken on electronic filing.

“Our court is very paper-based and that’s quite an antiquated system in 2017. The ministry is making some moves in this area but the focus has been on criminal and family, and perhaps civil has been a bit neglected in comparison,” Dr Toy-Cronin says.

And you should see the paper. The stack of paper we used for my defences against Colin Craig was massive.

Judgment delivery times could be improved by getting District Court judges to take on more cases or protecting the time a judge has immediately after a hearing and allocating them to write in that period, rather than hearing a case.

One anonymous lawyer in a focus group for the study says: “It seems to me that it must be quite tricky to make clear in somebody’s mind what the evidence was that they had heard six months ago when they were writing a decision so I would imagine if they had time immediately available to them afterward, it would make their life easier to get the decision done.”

However, Dr Toy-Cronin notes, “the downside to this is it reduces flexibility to the courts, if you have judges locked up writing cases, and the courts need a lot of flexibility. So it’s potentially a fruitful area but requires further investigation.”

What is also terrible, is judges are being very activist in shutting down defendants rights to jury trials in civil cases, even when the law specifically allows for it like in defamation cases. The argument, usually from the plaintiff is that juries are too stupid to comprehend cases, or that it will extend the length of the trial in the court room by a couple of extra weeks. Both contentions are, of course, rubbish. But the judges entertain it. In the Jordan Williams case before a jury the trial took four weeks, and a decision by the jury was issued immediately afterwards. In my case with Colin Craig, traversing substantially the same matter and details, the trial which was judge alone, took four weeks, and here we are seven months later still waiting for judgment. In that time Jordan Williams has managed to get through the Court of Appeal. In my case, a judge, not the trial judge, ruled that it would be more orderly to have a judge alone trial despite my objections to that. Judges really don’t like jury trials, but they leave litigants hanging for months awaiting decisions.

The research quotes an anonymous senior partner in a major law firm who suggested that the availability of Queen’s Counsels was used as a way to “game the system,” as delays can be created through scheduling.

However, Dr Toy-Cronin says, “one of the interesting things about the legal profession is that the more they are seen as experts, means they are more overloaded and, if someone has a high caseload, there’s no easy answer. You could restrict what [QCs] take on but then that could create incentives to put more time and money into cases and slow down the system that way, so it’s not a simple thing but it is an issue.”

Meredith Connell partner Nick Flanagan says trial dates need to be set much earlier – forcing lawyers to stop using delay tactics.

“Lawyers love to spend time and money arguing about minor things and lawyers always work to fill the time they’ve got there are so many preliminary skirmishes and the better thing to do is just enforce much more discipline.”

Trial dates should be set and a march towards court should be commenced immediately. That way delaying tactics that use masses of interlocutory applications and endless interrogatory processes could be avoided.

 

The courts are in drastic need of reform.

 

-NBR


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As much at home writing editorials as being the subject of them, Cam has won awards, including the Canon Media Award for his work on the Len Brown/Bevan Chuang story.  And when he’s not creating the news, he tends to be in it, with protagonists using the courts, media and social media to deliver financial as well as death threats.

They say that news is something that someone, somewhere, wants kept quiet.   Cam Slater doesn’t do quiet, and as a result he is a polarising, controversial but highly effective journalist that takes no prisoners.

He is fearless in his pursuit of a story.

Love him or loathe him.  But you can’t ignore him.

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