In New Zealand, the required procedure for civil court action is set out in a set of rules for the two main courts in the country: The District Court Rules and the High Court Rules. A consultation has just been concluded on significant changes to the High Court Rules. We discuss three core proposed changes in that consultation, and their potential impact on the process and scope of discovery below.
As in many developed countries, access to justice is New Zealand suffers due to the prohibitive cost of civil court proceedings. It has been noted that pursuing a claim in the District Court (New Zealand’s lowest full court) is uneconomic for less than $100,000. In addition, only 4 percent of claims end up being defended, and of those only a tiny proportion end up going to trial.
From a discovery perspective, we might observe that there is very little scope to resolve legal disputes through discovery proceedings due to the prohibitive cost of the court system in general.
To respond to this concern, the ‘Rules Committee’ (a statutory body consisting of the Chief Justice and at least one other High Court Judge) has consulted on a range of proposals which could improve access to justice.
This proposal, modelled on the existing ‘short causes’ procedure in England and Wales would involve:
-A limit on pleadings to 20 pages;
-No ‘everything including the kitchen sink’ discovery. Discovery would have to be tailored to the case at hand or would be potentially non-existent;
-A default rule for evidence to be given in affidavits, with cross-examination;
-The goal for civil proceeding duration would be ten months from go to whoa, with no trial to exceed four days.
Currently the New Zealand court system, much like the U.S. court system, follows an ‘adversarial’ method. That means it is a lawyer-run system with the Judge acting as a neutral ‘referee’. It is proposed that the system for smaller claims could be made much simpler and cost-effective by introducing an ‘inquisitorial’ system as is common in Europe.
In this process, the Judge would be actively involved in case resolution from the beginning and there would be extremely limited rights of appeal.
It is proposed that all proceedings would begin with a summary judgement application (i.e. for a judgement without a full trial). This way a more simplified court procedure, including any agreement on discovery scope, could be ironed out at the beginning.
These proposals, if they get confirmed in new rules, may appear to significantly reduce the scope for ediscovery: Reduced discovery presumably means reduced ediscovery. However, it is worth recognizing that the purpose of these changes is to enhance, not reduce, access to justice. In light of this, while discovery (and hence ediscovery) might be curtailed in lower stakes cases, it may also be the case that these changes:
a.) Allow civil proceedings to be brought with discovery (albeit of limited scope), that would never be brought to court in the first place;
b.) May open up court time and resources to consider more quickly cases where discovery is required.