Wednesday, 23 September 2009

Civil justice reform and the role of ADR

Last evening I went to the New Zealand Law Foundation public lecture presented by Dame Hazel Gunn at the Victoria University Law School.. Her topic was essentially the value of the many initiatives to reform civil procedure around the world. She discussed the value of those reforms and critically assessed the lack of any real empirical evidence as the basis for such reforms. She was concerned about the resources being diverted from civil courts to criminal courts, and the inevitable effect on access to the law. Importantly, she challenged the common theory that adjudication is not desirable and that mediation or other ADR methods are superior and should always be used. She identifies that a democratic society requires adjudication to enable people to have some certainty in contractual and commercial matters, and the growing expansion of ADR has led to a “thinning” of the common law. Her lecture will be published as part of the Hamlyn Lectures later this year. I hope both the Rules Committee and the Law Foundation buy a copy!

One of her concerns is the lack of any real empirical evidence that reforms are needed. One must keep an open mind about this-after all once the research has been completed and considered, there may well be a need for change. There was for example a concern in New Zealand that too much litigation was drifting without any impetus. As a result the case management system was introduced. Instead, the cost of litigation has expanded enormously, and many of my colleagues complain about the remorseless onslaught of more and more conferences. Did we establish by any research that cases were drifting? Do we have any evidence that case management fixes a problem, or that there was indeed a problem at all. The District Court Rules in New Zealand have just been radically reformed. Where is the research based evidence that the changes were needed? There may be a need for change, but we must do so on a proper basis.

The real problem in New Zealand, like that in England, is the enormous expansion in criminal work. This sucks away resources for civil work. Perhaps we are looking at the wrong area for reform. The way in which we approach criminal work, as I have suggested in earlier posts may need a review, and indeed the Law Commission is doing so, I hope based on proper research. There are some obvious ideas. Permit better grants of legal aid for sentencing, ensure that over prosecution is reduced and send more work to the District Court. Chief District Court Judge Russell Johnson recently observed that a high percentage of District Court cases are withdrawn, and I would assume the wasted resources are obvious. In addition the prosecution of drug offences has escalated, with a greater number of methamphetamine cases.

So, to enable us to deal with criminal work, we have developed the thesis that ADR and mediation should be used to divert the civil work away from the courts. I am keen to read Dame Hazel Gunn’s Hamlyn Lectures. I may even send a copy to the Rules Committee.

Tuesday, 22 September 2009

Quality of Lawyers

The Attorney-General Chris Finlayson has ruffled some feathers with a recent attack on the poor standards of some lawyers. He said in the article from the Dominion that

“Too many lawyers practising at the bar are incompetent, or worse, and there is no proper means of assessing their competence or requiring them to be properly educated.

"We're breeding a class of barristers who don't even know how to address the court, much less know how to cross-examine, write submissions and act in a professional manner."

He suggested that the courts should have powers to order lawyers to pay costs personally when they waste court time. This power already exists, as may be seen from my previous post. It is rarely used, but the incompetent and intemperate are sometimes ordered to pay client costs themselves. Perhaps in the erudite and sophisticated word of Mr Attorney, he has not seen the sometimes sharp reminders from some of our Associate Judges such as Tomas Kennedy-Grant, who regarded standards as part of the training given to the often junior counsel appearing before him. He reminded them, in a careful and direct fashion, when the standards had slipped, with always great observance of form and courtesy. The bustle of a District Court civil list may also be too far removed from Parliamentary ritual, but I guarantee they are more polite than some exchanges in the bearpit of the Beehive.

The further point he makes about further education, is long overdue. Those of us who go to the trouble of attending seminars have a commitment to keeping up to date. As a practising panel member of the Arbitrators and Mediators Institute I must keep up continuing training points each year. This has been suggested for lawyers too, but we still do not have any requirement to undertake any study after graduation and admission to the bar. Most professions make further training compulsory-lawyers must do so to maintain standards.

As to addressing the court Judge O’Donovan has written a most useful book, now in the 3rd edition, which should be required reading. It can be bought from the Auckland Law Society or CCH (members get a better price.)

Friday, 18 September 2009

Legal Costs, and how to add to the pain

The costs resulting from a law case have interest for both the consumer, (if that is the correct term for someone who must swallow large and painful morsels of legal fees) and for the lawyers as a matter of legal principle. Some case must be taken in drafting a claim, because the costs may rebound on a plaintiff if improper matters are brought and not proved. There is a legal maxim that costs follow the event, as illustrated recently. In Phillips And Anor v Gould HC AK CIV 2003-404-5062 11 September 2009, Justice Peter Woodhouse awarded the defendant (a well known Auckland barrister ) indemnity costs. The plaintiff is an Auckland solicitor, who took exception to Mr Gould’s handling of work on a commercial matter. The judgment tells a sorry tale of the plaintiff’s failure to observe timetable orders, delay in complying with other orders and finally persuing a claim which was not only hopeless, but also alleged fraud and deceptive conduct. It is a well known principle that an allegation of fraud must be brought with care, because if you do not succeed, the costs awarded will be the actual costs of the case. (Normally they are about 60%). The judge strongly criticised Mr Phillips and ordered him to pay the full costs. The tenor of this form the judgment at para 27 “The negligence claims of the plaintiffs failed in respect of all elements of a negligence claim: there was no duty of care; if there was a duty there was no breach; if there was breach, any breach was not causative of the claimed loss; the claimed loss was not established.” And at para 31 “The claims failed because the plaintiffs did not have available any material evidence in support of elementary contentions the plaintiffs had to establish, save in respect of the possible duty of care owed to Brambletye Holdings.” Finally at para 40 “My overall assessment is that Mr Phillips, for himself and for Brambletye Holdings, which he controlled, acted improperly in bringing these proceedings and then in continuing them. I cannot avoid the conclusion that Mr Phillips cast around for somebody who he might sue, if he could find a semblance of a claim, for the purpose of trying to recoup some of the losses that Mr Phillips had sustained through his own mismanagement of Brambletye Stud and, in respect of Mr Plumley, through his own breach of fiduciary duties and negligence.”

I do not comment further, leaving the judgment to say it all.

Wednesday, 16 September 2009

Punishment and the death penalty

There is a thoughtful article in the latest New Yorker on the execution in Texas of a man charged with murdering his young family by arson-he was said to have deliberately burned down his house, with the children inside. In 2004 he was executed by lethal injection, despite a round of appeals. More recently, forensic scientific evidence appears to show that his (innocent) version of the events may have been correct. In New Zealand we do not have the death penalty any longer. The frenzy which surrounds every high profile sentencing will no doubt draw out the hanging posse from the darker parts of the Sensible Sentencing trust. The Texas case is a troubling story of a combination of small town justice, with added factors which have themes in New Zealand. The defendant could only afford their equivalent of a legal aid lawyer, who appears to have done his best with inadequate resources. But, the worst part is the scientific evidence, which appears to have been, in the words of the article, more “characteristic of mystics or psychics”. Prisoners on death row in Texas do not have access to much except mostly projects run pro bono, such as the Innocence Project.

We are reminded that even the most horrible offenders should have adequate resources to defend themselves, and that the system does get it wrong sometimes.

Tuesday, 15 September 2009

Latin and the law

As recently as the 1940's Latin was a requirement of the law degree in New Zealand. Latin and Greek were essentials of an arts education in most European countries, and the settlers ensured that all the schools taught these. Both lawyers and doctors were expected to have at least a grasp of the basics. Our present Chief Justice has made no secret of her desire to remove as much Latin as possible from New Zealand law. The problem is the perception of Latin as an elitist subject used to ensure that law is kept as an arcane secret from the common herd. But, Latin has been an integral part of the common law from its beginning. The use of pithy Latin phrases often carries significant meaning, much as maori proverbs do. The limit has been reached however in the new District Court Rules where I find that the plural of "memorandum" has become "memorandums". Alas, the barbarians have entered the city and reside in the Parliamentary drafting Office. To this I can only say o tempora o mores!

The English House of Lords does not have such inhibitions. I noticed in the recent case of Moore Stephens (a firm) v Stone Rolls Ltd [2009] UKHL 39 (30 July 2009) the first judgment began by citing the legal maxim of "ex turpi causa non oritur actio" without providing a translation. Clearly English lawyers are expected to understand. We risk being seen as uneducated and rustic colonials in the Common Law world.

(Any non lawyer readers who need translation should ask)

On line comments

A timely reminder from the New York Times about the care needed by lawyers in posting on social networks. A successful lawyer requires balance-while you may think a judge is wrong or inadequate, your remedy is the highly structured system of appeals or the official complaint system. In New Zealand we have a Judicial Complaints Commissioner but the reality is that a complaint is a high risk. If you don't succeed it could end your court career, especially in a small town. However I don't think we have too much to complain about here. The worst behaviour is usually impatience with stupidity, and stupidity is something judges have to endure frequently. We have had some colourful judges in the past. The late Justice Morris attracted his share of complaints, although my experience of him was a low tolerance for fools, and somehow I managed to avoid any direct hits. I was talking recently to very senior lawyer who suggested I should write about some of the others. We don't have many biographies of judges- Sam Mahon's My Fathers Shadow is an exception-but is more about the father son relationship than the judge. There are some barbs reserved for other judges however. The others published recently are just collections of war stories. We have a need for more intellectual analysis of our judges. Unless we know how they really think, the context of their decisions may be obscure. Members of the Critical Legal Thinking school may have strong views about judges, who are mostly appointed from very conventional middle class backgrounds. They must reflect the values of their class and upbringing, and to be able to reach into and understand those from outside of the barricades would be a massive adjustment.

Friday, 11 September 2009


There is a lot of media rhetoric about the defence of provocation. The recent unsuccessful use of the defence in the Clayton Weatherstone trial, and the Auckland case where it was successful, of Ferdinand Ambach have now attracted a change in the law. The New Zealand Law Society has opposed the change, submitting the present law is adequate. There is a need for clear thinking on the topic. Murder has always required what can be summed up as murderous intent. You have to form the intent that you are going to kill someone. If you are defending yourself, and in the course of the struggle, kill the attacker, you do not have murderous intent. If you are insane, so that you do not understand the nature of what you are doing, then you do not have murderous intent as your mind is clouded by the mental illness. Provocation also requires that you act without thinking, in reaction to something, and if the result of that act is a killing, then you did not have the murderous intent. Sometimes this is run as temporary insanity, but the logic is the same. What we need to avoid is using the unusual and possibly unique facts of these cases to justify a change, without some better evidence that change is required, other than the ever popular political wish to be tough on crime.

Thursday, 10 September 2009

Sale of Liquor

As an addendum to the last post I read an article in New Scientist which argues for the use of empirical evidence in government decision making. In the area of law reform this must be critical, as the only reason for changing law can be that there is a properly demonstrated need for the change. It is one thing having a social problem-and another to come up with the empirical evidence that the law change will solve the problem. Restrictions on the sale of liquor were spectacularly unsuccessful in the Prohibition era in the United States. I was brought up in Mt Roskill, Auckland, which was a dry area, where sale of liquor was prohibited. Our local scout troop used to fundraise by collecting empty beer bottles in Mt Roskill and always made large amounts of money. It may be argued that the reason for the evident failure of that restriction was that Mt Roskill was surrounded by places where liquor could be bought, only a 10 to 20 minute drive away. The restrictions now discussed will suffer from the same problems. Passing laws is only an answer if empirical evidence can demonstrate, to an appropriate standard, that this will solve or ameliorate social drinking. I wait with interest to see if the Law Commission will undertake this level of analysis.
As an aside, when we talk about abuse of liquor, we always talk about alcohol, as if the use of the scientific term adds weight to the discussion. I have never heard of sauvignon blanc or claret abuse, although I may have engaged in such abuse myself.

Tuesday, 8 September 2009

Sale of Liquor and the Law Commission

Law Commission

Recently the Law Commission announced that it was to undertake a comprehensive review of sale of liquor legislation.[1]The initiative was from the previous Labour Government, perhaps not surprising considering the long standing interest of the Labour Party in liquor control.[2] The brief was summarised by Rt Hon Sir Geoffrey Palmer to the Alcohol Advisory Council, 'Working Together' Conference, in Wellington on 15 May 2009 as:-

“The central issue for the Law Commission project is whether the pendulum has swung too far in the direction of liberality and the availability of alcoholic drinks and, if so, what measures can be adopted to combat the situation and limit the harm that it causes. Two things are necessary for that test to be met. First, there has to be an identifiable and explicit harm. Second, it must be shown that the measure proposed is likely to address the identified harm effectively.”[3]

The central issue is whether the Law Commission is the right body to undertake such a review. The mandate for the Law Commission is contained in the Law Commission Act 1985 and in particular Sections 3 and 5. It is important to set these out.

Section 3:-


The purpose of this Act is to promote the systematic review, reform, and development of the law of New Zealand.”

And Section 5:-


“(1) The principal functions of the Commission are—

(a) To take and keep under review in a systematic way the law of New Zealand:

(b) To make recommendations for the reform and development of the law of New Zealand:

(c) To advise on the review of any aspect of the law of New Zealand conducted by any Government department or organisation (as defined in section 8(2) of this Act) and on proposals made as a result of the review:

(d) To advise the Minister of Justice and the responsible Minister on ways in which the law of New Zealand can be made as understandable and accessible as is practicable.

(2) In making its recommendations, the Commission—

(a) Shall take into account te ao Maori (the Maori dimension) and shall also give consideration to the multicultural character of New Zealand society; and

(b) Shall have regard to the desirability of simplifying the expression and content of the law, as far as that is practicable.

(3) Except as expressly provided otherwise in this or any other Act, the Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers under—

(a) this Act; and

(b) any other Act that expressly provides for the functions, powers, or duties of the Commission (other than the Crown Entities Act 2004).”

In this paper I suggest that the Law Commission has exceeded its mandate in undertaking this review, and is not only the wrong body to do so, but has stepped into an area well outside that of law reform, into social policy, which is a different discipline and requires an approach not bounded by the limitations of law reform and statutory recommendations.

The purpose of the Law Commission is clear in the statute. The job is to reform law. However the task of redrafting sale of liquor legislation is one matter. To decide whether the current law is too liberal (or not liberal enough) and whether it causes a harm must be well outside the ability of law reform body to determine.

To do so it is necessary to unpick the quote and other references made by Sir Geoffrey Palmer. He acknowledges in his 15 May 2009 speech that attempts to control liquor in the United States by prohibition laws were a spectacular failure. In the quote cited however, he raises the issue of whether the law can address the harm which is now said to be present[4] and tolerated by the present law. What effectively he suggests is that rewriting liquor laws will solve the problem, or that by changing the law we can get people to stop drinking too much, which I suggest is a fundamental fallacy. Some further guidance to the thinking of the Commission on this aspect is in an earlier speech given by Rt Hon Sir Geoffrey Palmer at the NZ Police 'Alcohol Related Harm' Breakfast, in Nelson on 24 April 2009,[5] where he suggested that the Commission may recommend an Act to be called the Alcohol Harm Reduction Act and said:-

“ The object of this Act is to establish a system of control over the sale and supply of alcohol to the public with the aim of contributing to the minimisation of harm caused by the misuse of liquor ad in particular the reduction of health harms that result from alcohol consumption, the prevention of crime and disorder associated with the use of alcohol and the protection of children and youth from alcohol related harms”

He acknowledges that the previous liquor legislation, prior to the Sale of Liquor Act 1989, was complex and when reformed led to the cafe and restaurant culture now widely accepted. The underlying thesis is that if we make significant changes then we will address the social harms. The particulars appear to include dropping the alcohol limits for drink driving offences, restricting advertising of liquor and reducing opening hours for licensed premises.

I question whether the issue of the harm caused by excess alcohol consumption can ever be solved or even modified by such measures. The complex liquor laws from the past, from days of 6 o clock closing, to the present have not ever come close to changing those who are addictive to alcohol, from stopping drinking. I would suggest that the initiatives from Alcoholics Anonymous (who don’t have any statutory recognition) have achieved far more for assisting problem drinkers than any statutes on the books. Closing an inner city bar at 6 am is not going to stop a rural farm worker from over indulging at a party in the local woolshed.

The whole history of sale of liquor legislation is littered with attempts to change drinking patterns. We are hampered by lack of real empirical evidence as to how these problems arise. For example, in the period after 6 o clock closing was introduced, what was the percentage of car ownership? How does the introduction of cheap Japanese imported cars, making cars affordable for many more people, affect the temptation to drink and drive? What is the effect of the secularisation of new Zealand, reducing the religious based objections and social controls? Those and many other interesting questions cannot be resolved by restricting advertising or closing bars early, or preventing alcohol from being sold with vegetables.

More importantly is it within the jurisdiction of the Commission to be suggesting controls as to sale of liquor to solve social problems?

[1] Comprehensive Review of Regulatory Framework for the Sale and Supply of Liquor

Published 6 Aug 2008

[2] One of the founding strands of the Labour Party was in the Temperance movement.

[3] The speech is found at

[4] For the purpose of this paper, and it cannot be seriously argued to the contrary, it can be accepted that excess alcohol consumption by some people is a serious social problem in New Zealand


This article is now in New Zealand Lawyer Issue 122

Maori Land Court

I have just spent a day in the Maori Land Court in Rotorua. Because of a shortage of space we were moved to the District Court for the hearing, and ended up in a jury trial court room. Many of the supporters ( well 12 anyway) ended up in the jury box and the rest were crammed into the back. The court was adequate for the lawyers, but in the Maori Land Court, it is usual for families to appear and support (or oppose) the matters being heard. The Mari Land Court it self was renovated recently, and is a wonderful courtroom, with both traditional and modern Maori themes,with much native timber, in a warm and welcoming space. The court has been given more jurisdiction, which means more work, and I hope that the court will be properly resourced. They have a good start, but cannot be treated like a poor relation of the other civil courts. There is competition for the tax dollar but the Te Tiriti principles mean that both streams of jurisdiction should have equal resources. if this means more court rooms of adequate size, then that is what should be provided. The court staff do what they can, but the issue needs attention at a higher level.

Thursday, 3 September 2009

Lawyers fees

I have just been advised that I have been appointed a Costs Assessor for the New Zealand Law Society. There is an interesting change from the old legislation in that it is not just the amount of the fee which can be examined, but also anything else which arises from looking at the bill of costs, which would would assist the Standards Committee. The Standards Committee look at any complaints not just as to fees. After my comments on Legal Aid below, this may be an interesting contrast. It also reminds me that I published a brief article on Scale Fees for Conveyancing back I think in 1979. Fees have changed much in the last 30 years! The concept of scale fees would probably now attract the attention of the Commerce Commission and the size of some fees would astonish some. But, the practice of law is very market driven and competition means that fees are often affected by whatever the opposition charge.

Wednesday, 2 September 2009

Legal Aid

The report from Dame Margaret Bazley is on the face of it, somewhat damning of the legal profession. She attacks "car boot" lawyers who maintain a low cost practice with few of the trappings of a usual law practice, and who take on more work than they can actually handle. The overheads of running a law practice are not small. With the licence fee now about $1800 per annum, professional indemnity insurance at at least $3000, and the need to have at least minimum computing equipment costing around $3000 the attraction of working for $105 an hour seems difficult to understand. It would be hard to rent space, even in the most unattractive rooms, for less than $200 per week and the cost of a phone would be at least $200 a month. This at the very minimum, would be about $20,000 and once the cost of photocopying, stationary, postage and faxes, plus the very minimum law texts, then I would think very few spend this small an amount. Even the car boot must come attached to a car, and the travel costs are not small. The $105 per hour only works if you have continuous work, and plenty of trials do not proceed. The Legal Services Agency used to (and I expect still does) scrutinises bills from lawyers carefully, and only allows a set time for preparation and not all adjournments are approved. I rather think some lawyers take on a legal aid role because they cannot find a firm to work in. Others do so for choice, but Gary Gotleib astutely observes that in private practice the hourly rates are much higher and he says a lawyer had to be a "mug" to choose criminal law. The reason that the legal aid system has problems is that the rates are too low, not the other way. More experienced lawyers would take on the work, and operate more efficiently.
Other factors also affect the higher costs. Some years ago much of the approval of legal aid applications and of the bills was handled on a voluntary basis by local committees of lawyers, working as unpaid volunteers. They had local knowledge of who was competent, who was overbilling and who was efficient. Instead we now have a large bureaucracy of paid employees. They seem to be adequately competent, but not unreasonably want to be paid. Offices have to rented and a central office is required. It would be valuable to compare the old system in terms of costs. It is too late to return to this. I believe that lawyers have been discouraged from much pro bono work such as this, at least for lack of thanks and recognition.

What is the answer?

Encourage more appropriate charges instead of over prosecution-always a problem. Then, if the appropriate charges are laid, encourage more guilty pleas by use of greater allowances for preparation for sentencing, more use of restorative justice and more resources for expert reports such as drug and alcohol abuse, psychologists, and better probation reports.

For civil legal aid, roll out the mediation model which is to be introduced for family law, and use legal aid to fund mediation in more civil cases.

The rest? Just accept that where the rule of law applies some people will need adequate lawyers but cannot pay for them The cost of large numbers of unrepresented parties will be far greater than the costs of legal aid.