Just another article on the impact of Covid 19 and its attendant restrictions is hardly what the doctor ordered. However, the purpose of this piece is to focus on the backlog of cases which Covid lockdowns have only made (much) worse and to set out some practical solutions to try and address the delays already being experienced in the justice system.
First, the problem. This is what the Minister for Justice, Hon Andrew Little, had to say in July last year (so, after the April 2020 lockdown):
Due to COVID-19, over 47,000 District Court events were adjourned or rescheduled. There was a 62 percent drop in disposed cases during Alert Level 4 – that’s over 6,000 fewer cases being closed. …“The delay in some matters coming to court was already unacceptable; COVID-19 has compounded things and put a strain on an already-struggling justice system.
The most recent lockdown commenced in mid-August. The current lockdown will continue to have an effect, particularly in Auckland – the busiest centre for Courts in New Zealand – until the end of the year. The backlog identified last year will now be even worse, particularly given the duration of the present restrictions. In practical terms, the District and High Courts stopped hearing lengthy cases with witnesses once the lockdown was imposed. That’s 3 months of trials lost. Those cases now need re-allocation. Reallocation will somehow have to occur within the pre-existing backlog.
In short, we have a problem. In criminal trials, complainants will face long delays before their cases are heard; defendants may be on lengthy periods of remand, or on onerous conditions of bail. In civil cases, litigants who have existing proceedings before the Court, but have not had trial dates allocated, can expect their disputes will not be heard, let alone determined, until 2023 if the trial is one of any reasonable duration.
What can be done? In our view, there are several solutions that would result in faster determinations that should be considered. These solutions include (in order of impact):
- In civil cases, doing away with the need for witnesses to read their briefs aloud in Court. This existing practice is time-consuming and costly. It may come as a surprise to the uninitiated (who probably think of witnesses giving “live” evidence, in response to questions from lawyers), but in civil cases a witness’ evidence is literally read aloud from a pre-prepared statement or brief (in reality heavily drafted by lawyers, not the witness). This process achieves nothing worth preserving. Yes, while the Judge has the evidence read to them, this is not done in a way that assists a Judge in gauging a witness’ credibility, or assessing their evidence. Judges and lawyers have been moaning about the existing practice well before Covid surfaced. There are moves afoot to address it. Let’s finally do something about it now. Judges are voracious readers. Briefs should be filed ahead of a trial commencing; they should be taken as read before the trial gets underway. This would save an extraordinary amount of time. It would also have the related benefits of Judges being informed of the intended evidence and likely issues before the trial gets underway. This will help the Judge, and therefore the parties, as he/she will be able to better police admissibility issues and will have a feel for the issues of true relevance to the dispute.
- Judges should be assigned to files earlier and the parties should be told the identity of the assigned Judge. The current practice is that Judges are assigned to trials very close to the trial date. In proceedings which have been on foot for months, if not years, this means a number of other Judges have looked at, or case managed, the file. Yet the trial Judge is likely to have no familiarity with the dispute. Then, in the week or so before trial, there is a veil of secrecy over which Judge has been appointed. This is, frankly, unhelpful (if not a little patronising). It is also inconsistent. In the Court of Appeal, judges are assigned well before the hearing and the parties know which judges are sitting at least a month beforehand. Surely it is preferable to have a Judge assigned to a file from a much earlier point in the (long) procedural path. This way the Judge knows the file, the parties and the issues. Counsel and the parties know who the Judge is. This is advantageous. If the Judge has, for example, properly indicated her views on certain issues, the parties proceed to trial at least knowing which way the wind is blowing. The issues become refined. Trials are shorter as a result.
- All pre-trial hearings, and indeed many trials and appeals, should be conducted virtually even after Covid restrictions ease. Virtual hearings are faster. Faster hearings are cheaper and free up space elsewhere. Virtual hearings save on travel time, money and fossil fuels. One of your authors (Rowan) recently had a half day hearing in Hamilton where he travelled from Waiheke; the Judge from Auckland; the Crown from Wellington; and defence counsel from New Plymouth. Only the Registrar was Hamilton-based. No witnesses were called. This could, and should, have been held remotely.
- Judges should consider imposing (and enforcing) time limits on counsel. Judges do this informally already. But the default position is that opening and closing submissions, and cross-examination of witnesses, are not subject to time limits. However, time limits focus the mind. This leads to shorter trials and clarifies the key points. Openings and closings are almost always filed in advance of oral submissions on the same. Again, invariably, the trial Judge has read these before the lawyers stand up to speak to them. Why not say to counsel: “I have read your submissions, you have 30 minutes to speak to them” (for example).
- Cases should be triaged far more than they are. Extraordinary times call for such measures. We all have our share of disputes where the amount in issue can quickly become uneconomic. More consideration should be given to referring proceedings to mediation and/or arbitration (see below). Access to justice is important and smaller files often throw up interesting legal issues. But, unlike other countries, NZ seems to lack a “proportionality filter”. In any event, just because a case is mediated or arbitrated does not mean the parties are deprived of justice. Some of our Judges must scratch their heads as to how modest disputes end up at trial or on appeal. Yet, there is very little a New Zealand Judge can do on the current state of our laws. A recent case of the Commissioner of Police seeking to restrain $28,000 from a KiwiSaver account went all the way to the Court of Appeal. The Commissioner lost. This will have resulted in the Commissioner paying more in costs to the respondent than it could ever have hoped to recover. And, a Court of Appeal with 3 Judges, was required to adjudicate on the issue. While clarification of the law is important, was this really the best set of facts to test the waters with and was it really worth the time and cost?
- Mediation and arbitration are not dirty words – they can, and do, provide access to justice. Nine times out of ten, both mechanisms are faster, more flexible, and cheaper than Court proceedings. And, both processes are confidential. Court is not. Judges should have the power to direct parties to arbitration in appropriate cases. This may be where the amount involved is less than (say) $1m. It would be simple for Courts to have a panel of suitable arbitrators with pre-approved fee structures. New Zealand already has a pool of world class arbitrators, including many former High Court and Court of Appeal judges. We should be using that resource. And while parties can’t truly be forced to mediate, perhaps a party who refuses to do so should be faced with a default rule whereby if they do refuse, they are likely to face cost orders (win, lose or draw)?
- Temporary Judges should be appointed and “Nightingale” courtrooms should be considered. This happens in other countries. Why not here? A temporary Judge is one appointed for a finite term; say, 6 months. That person is normally a senior lawyer, so they will have an excellent understanding of how Courts work and will be familiar with the law and issues in the cases before them. It may be that the appointee is simply case managing files or, better yet, is a specialist who could handle trials in their area of expertise without skipping a beat. Again, it may come as a surprise to newcomers to our justice system that Judges will decide disputes involving issues of which they have no prior experience. Temporary judges could help. Nightingale courts are temporary courtrooms. Obviously, these won’t work in criminal cases where there are security risks, multiple defendants or juries. However, arbitrations and mediations often occur in office buildings (even hotel rooms) up and down the country with no obvious difficulty. Courtrooms, on the other hand, are expensive to build and, given current consent, budgetary and supply constraints, won’t be built any time soon. Any number of civil hearings (conferences, pre-trial hearings and even trials) should be heard virtually or, if necessary, in any room where there is electricity and light (Courtroom 8 at the Auckland High Court doesn’t even have windows, so let’s not pretend we need natural light!).
- Jury trials should be suspended and replaced with Judge-alone trials. Cue howls of derision. But the “right” to a jury trial is subject to reasonable limits like every other right. The right can and sometimes should yield to other rights, including the right to be tried without undue delay. Undue delay impacts upon all stakeholders, including defendants, complainants, witnesses and the community at large. Judge-alone trials are faster, cheaper to run by some magnitude, and achieve better outcomes – Judges have to give reasons for their verdicts; juries do not. Temporarily suspending jury trials is at least worth considering if meaningful inroads into the backlog are to occur.
Rowan Butler and Sam Jeffs