Death spiral? Judge and lawyer at odds over judicial workload

A senior lawyer's suggestion a “death spiral” could trap the High Court as its civil workload shrinks, has forced the court's top judge to defend her patch. 

In what has become a rare public clash, Chief High Court Judge Helen Winkelmann has taken serious issue with an argument Auckland barrister Anthony Grant raises regularly in his NZ Lawyer column - that the High Court system of civil justice fails dispute resolution.

The debate re-opens a long-running legal sore exacerbated in recent years by the popular growth in the use of private mediation ahead of the courtroom for lasting dispute resolution.

While not advocating on behalf of private mediation, Mr Grant's argument suggests judges need - in layman's terms - to jerk up their ideas and be better armed to meet the needs of litigants.

Mr Grant complains the absence of specialist judges for many disputes, cost and inefficiency threaten to steer commercial trials away from the country’s High Courts – where the most serious and complextrials are heard.

The consequence, says Mr Grant, when potential litigants circumvent the courts for arbitration and mediation, is the ‘rule of the law’ is also bypassed and whole areas of commercial work are taken away from the courts.

Mr Grant also argues a good diet of civil trials is needed to keep lawyers “skilled in the art of civil trial advocacy” and to develop the pool of future judges.

In the magazine’s April edition, Mr Grant, a barrister at Radcliffe Chambers, says Auckland is the only centre where there is a credible amount (more than 24 a year) of High Court defended civil hearings.

“The practitioners in the other 18 registries will be struggling to get sufficient work to acquire adequate trial advocacy skills,” Mr Grant wrote.

He speculates: The people who might be appointed as judges will also be struggling to get sufficient trial work to acquire the skills that are appropriate for judges.

In the same publication, the following month, Justice Winkelmann said Mr Grant’s comments created an inaccurate picture of the High Court’s civil workload.

Some of New Zealand’s most successful judges have been drawn from outside the ranks of civil litigators, Justice Winkelmann wrote in defence of her judges.

“The skills judges require to perform their role in accordance with their judicial oath are not skills acquired only when acting as trial counsel or honed only when adjudicating a defended civil hearing.”

Judges need a firm grasp of legal principle, a commitment to and observance of fair process and an ability to make a decision, she says.

“These skills are acquired through study, through practice of the law and through adjudication. The requirements of fair procedure are as well reinforced through presiding over a criminal trial as they are through years of practice at the senior bar.”

Justice Winkelmann said an assumption the High Court’s civil workload is reducing was wrong.

In 2007 the High Court disposed of 1,394 general proceedings. In 2011, the court disposed of 2,062.”

Justice Winkelmann says in that five-year period there has also been a corresponding increase in the number of general proceedings disposed of through adjudication of right.

A trend peculiar to New Zealand is that the rate at which civil cases go through to a full trial has not dropped in the face of increased rates of disposal through summary judgment.

In 2007, 93 general proceedings were disposed of by summary judgment (6.7%) compared to 479 (23.2%) last year.

“While other comparable jurisdictions have trial rates of around two to three per cent, New Zealand’s trial rates are high, with between six to 10% of proceedings disposed of through a full defended civil trial.”

The increase in volumes has not been limited to general proceedings.

The number of originating applications that were disposed of by the Court had risen to 906 last year, up from 676 in 2007.

The only area where workload had shrunk was in the court’s civil appeal’s jurisdiction where from 407 applications were disposed of in 2007 compared to 242 in 2011.

“It is thought that it may arise, at least in part, as a flow-on consequence of the procedural reforms introduced to the District Court in late 2009,” Justice Winkelmann says.

Although the New Zealand Bar Association has been critical of aspects of the High Court’s civil case management on occasion, its president Miriam Dean QC also leapt to the system’s defence after Mr Grant’s latest article.

Ms Dean wrote a letter to the editor of NZ Lawyer in May, saying Mr Grant’s article lacked fairness and balance.

Mr Grant’s criticisms did not acknowledge sweeping changes in the High Court discovery regime to introduce significant efficiencies in the trial preparation process, Ms Dean says.

And the Chief High Court Judge had demonstrated commitment to address numerous concerns about the civil justice system. Some initiatives had resulted in proposed reforms to case management, hearing allocation and evidence presentation.

This month Mr Grant has continued to raise his concerns on the topic in an article: ‘Mediation’s rise and litigation’s demise – how the situation might be reversed."

For the Courts to recover their position and get back the commercial business it needs to tackle three primary problems with the courts’ processes: Cost, delay and uncertainty, he says.

“The people of New Zealand deserve better. So too, do our judges. They should be getting a diet of stimulating cases in which they develop the law to make it more relevant and helpful for the community.”

Last August, National Busines Review reported a legal famine of commercial cases saw Justice Winkelmann warn of the dangers of resorting to "private courts" to resolve corporate disputes.

She effectively pleaded with businesses not to abandon public courtrooms.

Her concerns came at a time when NBR revealed commercial case filings in the Auckland High Court had halved over the previous four years, but the number of disputes had not appeared to have dropped.

Few commercial cases are heard outside Auckland.

Otago University law researchers added fuel to the fire with a report which accused judges and lawyers of taking too long to resolve civil cases.

In an exclusive interview with NBR in November 2010 about the role of private dispute resolution, former leading commercial judge turned private mediator Robert Fisher QC said the growth of private dispute resolution disappointed judges and was a disincentive to judicial appointment.

Mr Fisher said judges liked dealing with high calibre cases and were disappointed a lot of significant legal argument was dealt with outside their courts.

A number of senior legal sources told NBR at the time that commercial dispute resolution had undergone a complete sea-change as more people shunned "non-user friendly" courts and judges were sidelined.