The Paradox of Access to Civil Justice: Too Many Lawyers, Too Few in Civil Courts
By Ling Yee Wong
Improving Access to Civil Justice
The Rules Committee of the New Zealand Judiciary recently sought feedback from the legal profession and wider community on proposals to change some procedural rules for civil court cases. These proposals include streamlining procedures in civil cases. More radically, there is also a proposal to introduce inquisitorial process for certain civil cases within New Zealand’s traditionally adversarial court system.
In short, the inquisitorial system is one where the judge makes active inquiry to ascertain the truth in a case. In the adversarial system, the judge’s role is more passive, where the judge determines the truth by hearing both sides of the argument from interested parties, then makes a judgment.
The motivation for change can be summed up in a few statistics. As stated in the Rules Committee Discussion paper to the legal profession at paragraph 7, only 4% of civil claims in the District Court were defended between 2013-2018, and only a fraction of those went to trial. The same paragraph states that litigating a civil claim worth less than $100,000 is not economically, as court and lawyer fees will eat up any potential gain for lessor claims. In addition in 2018, 56% of civil cases had a self-represented litigant, comparing with 51% in 2017 and 47% in 2016.
A popular sentiment is that we have too many lawyers in New Zealand already. So the high number of undefended claims and self-represented litigants are symptoms of a court system that is simply too expensive for the general public. The general public thus have to resort to self-representation or no representation.
In their submissions to the Rules Committee, various community law centres around the country all highlight additional motivation for change: the current system does not work for the vulnerable part of the community. The Waitemata and Waikato Community Law Centres point out that the some members of the community often do not have confidence in the court system. They simply think a day in court is an opportunity to let the judge hear their side of story, while in reality procedural rules and lack of legal representation mean they cannot navigate the system properly to let their voice be heard. Porirua-Kapiti Community Law Centre in particular highlight a claim similarly made about the criminal justice system, which is that the adversarial court system is alien to Māori and tikanga. The Waitemata, Porirua-Kapiti, and Canterbury Community Law Centre also point out that migrant communities find the court system similarly unwelcoming. Youth Law further highlights the inhospitality of the court system for young people.
Lack of Access to Civil Justice: How is it Happening?
In theory, legal aid and community law centres provide representation in civil matters (including but not limited to court representation) for the poorer and vulnerable members of the community. Legal aid will assess a person’s financial resources and decide whether to lend the person money to hire a lawyer to initiate or defend a civil claim. For people on even lower income, community law centres provide legal services to them free of charge. Legal aid and community law centres are regulated by the Legal Services Act 2011. The eligibility criteria for legal aid are set by the executive branch of the government in the Legal Services Regulations 2011, while the Secretary of Justice determines the funding for community law centres.
However, in practice, the structure of legal aid and the funding of community law centres are inadequate. The income threshold for legal aid in the Regulation was set in 2016 and has not changed since 2018, while the cost of living has grown steadily since then, especially housing costs. Legal aid is also considered a loan and must be paid back. An unpaid legal aid loan accrues interest, so even if they win, legal cost is even more expensive for those asking for legal aid. If they lose, the financial cost would be catastrophic. Moreover, many lawyers are unwilling to take on legal aid cases in general since the fee they receive is generally lower than in private practice. This in turn puts additional strain on lawyers who are willing to do legal aid cases. The financing for community law centres is even more dire. Since 2008, the funding for community law centres has been frozen for ten years and only recently increased. This is despite the steady population growth.
Access to Civil Court: A Luxury?
There is an alternative school of political thought that validates the status quo: users pay. The idea is that since a civil suit settles disputes between private individuals, the cost should fall on the concerned parties. Access to civil court is thus seen as a luxury not a right, and private settlement should be the default mode of dispute resolution.
However this “users pay” school of thought has been rejected by both the Chief Justice Winkelmann in 2014 (then as Chief High Court Judge), and by the United Kingdom Supreme Court in R (on the application of Unison) v Lord Chancellor [2017].[1] Chief Justice Winkelmann points out that having access to civil court is an integral part of access to justice. Access to justice in turn is an integral part of the rule of law. In other words, “users pay” is simply an irrelevant concern. Lord Reed, speaking for the majority in the Unison case[2], points out another reason: that the court is a public institution. While the settlement of the dispute concerns only two parties, the rules and legal principles applied during the judgment will set a precedent and become the law of the land, and therefore have public benefit in addition to private benefit. It is therefore inappropriate to directly recover all court expenses from the litigants.
Is Streamlining Court Process and an Inquisitorial Court Enough?
We can identify three factors so far that will affect access to civil justice in court:
The amount in dispute.
Court fees and lawyer fees.
Public perceptions of the court.
The proposal made by the Rules Committee will streamline the court process, lessening the work lawyers must do and thus reducing lawyer fees. This makes lesser claims more economical to bring to court. Having an inquisitorial judge may also improve the perceptions held by people not well served by the present court system, so they are more willing to engage with the process. In addition, having an inquisitorial judge in some cases may reduce or even eliminate lawyer fees, making self-representation a more viable option.
However, given the public nature of court, even an inquisitorial judge will have trouble finding the truth if a litigant is silent because the litigant is afraid of embarrassment or saying something wrong. On the other hand, a legal advocate can build up extensive knowledge of the litigant's circumstances, and privately build trust with the litigant or break cultural barrier. Thus, the advocate can speak skilfully on behalf of the litigant while addressing the relevant legal issues. It is an open question whether an inquisitorial judge can ever replicate this kind of personal legal attention to litigants and deliver justice at the same time.
This brings us to the elephant in the room: the executive branch controls many aspects of access to civil justice, not the judiciary. As stated above, the executive branch sets the eligibility criteria for legal aid and funding for community law centres. The executive also has the power to set the fees for the High Court and above as prescribed in the Senior Courts Act 2016, and for District Court as prescribed in District Courts Act 2016. Currently, court fees seem to be less of a concern to the community law centres mentioned above. Reasonable court fees may also legitimately deter vexatious court cases. However, regarding legal aid and community law centres, as argued above they are difficult to access. The executive branch can in theory continue to do very little to improve their accessibility, consequently denying the poorer and vulnerable part of the community access to civil justice. The proposals of the Rules Committee to improve access to civil justice can only go so far without the cooperation of the executive branch.
What Needs to Happen to Further Improve Access to Civil Justice?
As we have seen in the Unison case, the courts can declare outrageous court fees, regulations or government policies that impede access to civil justice to be beyond the scope set by statute and thus unlawful (or ultra vires). However, this is a latent power of the court. To challenge the inadequacy of legal aid and community law centres funding, someone would have to apply for judicial review of the Legal Services Regulations 2011 or the Secretary of Justice’s funding decision towards community law centres, before the court can find them ultra vires. It is also an open question whether New Zealand courts would follow the United Kingdom Supreme Court in giving the executive branch a very public slap on the wrist.
On the other hand, political pressure can change the direction of the executive branch, thus making legal aid more generous and better fund community law centres. Lastly, the most straightforward but politically difficult solution is to radically change the statutes so all aspects of access to justice (including but not limited to legal aid eligibility criteria, community law centre funding, and court fees) become the domain of the judiciary and not the executive. It would decouple access to justice from political considerations, further cementing judicial independence and the rule of law.
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[1] R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409.
[2] At [69]-[70].