Contract and Commercial Law Bill

Revision’s “peculiar pleasures and… peculiar frustrations” (Vikram Seth)

A century’s worth of contract and commercial law statutes is modernised and consolidated by the 222 page Contract and Commercial Law Bill introduced to Parliament last week, the first major statute law revision exercise in New Zealand for over 100 years, with objectives of increasing accessibility and reducing regulatory cost. It is, on any view, an extraordinary and thoughtful accomplishment by the Parliamentary Counsel Office, whose explanatory materials bear reading. Continue reading “Contract and Commercial Law Bill”

Consumer protection and the rule of law

“… a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it”

None should think the Supreme Court’s dismissal last week, of credit providers’ appeals against findings their fees were unreasonable, is a ringing endorsement of the Credit Contracts and Consumer Finance Act 2003’s (CCCFA) regulation of credit and default fees charged by financiers to consumers under consumer credit contracts. Continue reading “Consumer protection and the rule of law”

“Plea bargaining”

World famous in New Zealand

A Comparative Look at Plea Bargaining in Australia, Canada, England, New Zealand, and the United States” (Marcus and others, 57 Wm & Mary L Rev 1147 (2016)) provides a timely and informative backdrop to last week’s media commentary on “plea bargaining”, in connection with the reduction from murder to manslaughter charges to which three year old Moko Rangitoheriri’s carers (while his mother attended another child in hospital) pleaded guilty. Continue reading ““Plea bargaining””

Being relevant

Courts contemplate their place in the world

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. Continue reading “Being relevant”

W(h)ither privacy?

Social media takes its toll

A result remains awaited from the UKSC’s urgent hearing last Thursday of an appeal against the EWCA’s reversal the previous Monday (PJS v News Group Newspapers Ltd [2016] EWCA Civ 393) of the interim injunction it granted to PJS in January 2016 ([2016] EWCA Civ 100). At issue was NGN’s intention to publish an account of PJS’s extramarital sexual activities. Continue reading “W(h)ither privacy?”

Vexing litigants – can courts do this?

The Supreme Court this week directed its Registrar to refuse to accept any applications challenging specified Court of Appeal and Supreme Court decisions, including any challenging that refusal. How far may courts go in regulating abuse of their processes? Does the contemporary rise of persistent litigants justify their outright prohibition?

In Creser v Creser [2016] NZSC 34, Mr Creser filed a third recall application consequent on dismissals of each his application for leave to appeal against a Court of Appeal judgment, and his two subsequent recall applications. Finding Mr Creser’s conduct to be an abuse of process, the Supreme Court directed its Registrar to refuse to accept any applications involving challenges to those decisions, its present judgment, and “any future decision of the Registrar refusing to accept such applications”. Continue reading “Vexing litigants – can courts do this?”

Living a life vicarious – on the move and yet to stop

Vicarious liability extends beyond employment relationships

Two recent United Kingdom Supreme Court judgments – Cox v Ministry of Justice [2016] UKSC 10, and Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 – illustrate vicarious liability may be developing to offer plaintiffs significant opportunities in defendant shopping, to increase insurers’ exposure to claims for such liability, and to give businesses added caution in dealing with customers and clients. Continue reading “Living a life vicarious – on the move and yet to stop”

Hotchin v NZGT: own goals for litigator and litigation?

Contribution is available to a defendant from another liable for the same damage alone, without any requirement that liability arises from some obligation had in common with the defendant.

Background: judgments below require ‘coordinate liability’

In Hotchin v The New Zealand Guardian Trust Company Limited [2016] NZSC 24, Mr Hotchin had sought NZGT’s contribution to any liability he may have under compensation claims brought by the FMA against him as a director of the Hanover Group. Section 17(1)(c) of the Law Reform Act 1936 permits one tortfeasor to obtain a contribution to its liability from another “liable in respect of the same damage”. Continue reading “Hotchin v NZGT: own goals for litigator and litigation?”

Waiting on the Supremes

Will forthcoming judgments restate or extend legal understanding?

There is a number of reserved Supreme Court judgments, possibly occupying the judges over their summer vacation, with material interest for commercial and public lawyers. Unsurprisingly, many such final appeals seek to expand on settled legal comprehension. Given certainty’s value in law, such expansions should only be because the informing doctrines have themselves advanced, rather than they may operate harshly in the appellants’ individual circumstances. Similarly, statutory interpretation turns on identifying the will of Parliament, distinctly from regulators’ preferences for enforcement. Whether those concepts will be applied here awaits these judgments. Continue reading “Waiting on the Supremes”

Supreme Court allows limited protection of digital data

The Supreme Court has this week made a small dent in the proposition, upheld by the Courts of Appeal in New Zealand and England last year, that digital data is not property for the purposes of the law.

The Supreme Court held digital data is property for the purposes of the criminal law.  But civil reliance on property rights will not suffice to protect electronic information – at least for now. Continue reading “Supreme Court allows limited protection of digital data”