In extracurial speeches, senior Commonwealth judges recently have been querying courts’ roles in delivering civil justice.
Identifying a gap in the market for services to a specialised form of participant, the “involuntary self-represented litigant” (to be distinguished from the “querulent” in pursuit of “self-obtained justice”), the Court of Appeal’s Justice Kós – drawing heavily on European civil law experiences – proposes a closely managed and partially inquisitorial process in the District Court. In his address to the Arbitrators’ and Mediators’ Institute of New Zealand and International Academy of Mediators Conference in Queenstown in March 2016 (“Civil Justice: Haves, Have-nots and What to Do about Them”), Justice Kós drew on the High Court Rules’ objective of “the just, speedy and inexpensive determination” of civil disputes to note the justice and efficiency deficits attributable to unrepresented litigants.
Anecdotal evidence points to an increasing and substantial number of unrepresented litigants: over half the applications for leave to appeal to the Supreme Court, quarter of the Court of Appeal’s active civil files, and a third of appeals in the Auckland High Court. Access to justice initiatives have not stemmed the flow of the unrepresented into the common law’s adversarial system. Justice Kós identifies judicial case management – a civil law initiative already adopted in NZ – as an in-road into that adversarial system. Greater judicial inquisitorial involvement offers opportunities for staged development of the dispute’s resolution, with the District Court triaging pleadings, issues, and witnesses, before ultimately conducting a short merits review of the case and its evidence. To offer equality of arms to unrepresented litigants, lawyers would have limited roles.
The Ministry of Justice helpfully has outlined a comparison of inquisitorial and adversarial systems (“Alternative pre-trial and trial processes for child witnesses in New Zealand’s criminal justice system”, App B), leading with the observation civil systems are heavily codified, and – taken together with an inquisitorial approach – resulting in little judicial precedent (ie, case law). Delivering the 4th BAILII lecture – “Developing commercial law through the courts: rebalancing the relationship between the courts and arbitration” – in March 2016, the Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd, decried prospective litigants’ reliance on alternative dispute resolution. That was a loss for the rule of law, which anticipated case law’s development in adversarial reasoned argument through appellate tiers and subject to public scrutiny and observation. Arbitral rights are so embedded in commercial contracts as to make restoration of significant disputes to the courts difficult, but necessary because “It is the courts that develop the law. Arbitration does not”.
Whether Justice Kós’ remedy would also risk Lord Thomas’ concern may be measured in NZ by examination of the employment jurisdiction. There, employees’ minimal threshold for raising most disputes (“I have unjustifiably been dismissed from or disadvantaged in my employment”) activates mandatory mediation, followed by inquisitorial adjudication. The dissatisfied can then embark on adversarial determination anew, but with very confined rights of appeal. The jurisdiction is assisted by being heavily codified: has it also stultified case law development?
[This article was first published in The Capital Letter (39/16, 3 May 2016)]