The Wheels of Justice: Understanding the Pace of Civil High Court Cases
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The Wheels of Justice: Understanding the Pace of Civil High Court Cases Bridgette Toy-Cronin, Bridget Irvine, A report of the University of Otago Legal Issues Centre Kayla Stewart and Mark Henaghan with support from the New Zealand Law Foundation ISBN 978-0-473-41311-8 Executive Summary Delays in the court process are a key obstacle in accessing justice. Delay creates costs; not only in the loss of time but also financial and psychological costs. These costs are borne by the litigants, the economy, and the public purse. This is the first major New Zealand study to investigate the pace of High Court civil cases and to examine if, and where, delays might occur. In this report, we look at both the overall length of cases, and we focus on various points in the life of a case where delay might occur. We have used mixed methods to study these issues: a quantitative analysis of data provided by the Ministry of Justice, an analysis of physical court files, and interviews with lawyers, judges, court staff, and litigants. Determining the overall length of a case is a more complex task than it appears on its face, particularly as there are limitations to the data recorded by the Ministry of Justice. Where possible, we have used our analysis of the physical court files to overcome these limitations and evaluate case length. On average, a case filed in the High Court will conclude within 191.5 days. General proceedings, one of the types of civil proceedings heard by the High Court, frequently exceeded the average case length, taking an average of 381 days to conclude. As general proceedings were the longest class of cases and account for 29 per cent of the High Court’s total caseload, the report focuses on this case type. Study participants agreed that most general proceedings should not exceed two years; only 18 per cent of general proceedings exceeded this limit. Analysing case length alone, however, cannot answer all questions about delay. Delay can occur in extremely short cases; conversely, for some very long cases the passage of time could not be conceived as delay. In fact, we précised several long cases that had no evidence of delay. These included cases that were ‘parked’ for various reasons: waiting for a related case to be resolved, an appeal to be heard, remedial work to be undertaken, or a settlement negotiated. Some cases just needed more time to be ready for trial, especially cases involving multiple parties, or with complex evidentiary issues. While lengthy, these cases were not necessarily delayed. Other cases – long and short – exhibited evidence of delay. Interviews with the participants helped to tease out the nature of this delay. The lack of judicial time to promptly hear fixtures (interlocutory and substantive) and deliver judgments was of particular concern. The unavailability of litigation participants, especially experts, also slows the pace of a case. Errors by registry were also evident; while rare, these errors can delay case progression. Finally, litigation involves a range of participants: litigants, lawyers, witnesses, court staff, and judges. The behaviours of any of these participants in the process can affect pace. For example, litigants, whether represented or unrepresented, can create delay for strategic reasons; lawyers preparing court documents late or to a poor standard can create delay. We canvas the interplay between these litigation participants and consider how these relationships can affect pace. When considering solutions to the causes of delay the fundamental purposes of the court must be kept to the fore: to secure just outcomes between parties, publicly state the law, reinforce norms, and limit executive power. The court is a complex organisation. There are many participants who each respond to their own pressures and incentives. Any solutions must take into account this complexity. Proposed reforms should be carefully considered and approached cautiously. Before firm recommendations can be made, further analysis of this data is required. A number of possibilities, however, have emerged at this preliminary stage. Many of these reforms centre on the case management process, including: earlier identification of issues in dispute, greater inclusion of litigants earlier in the process, improving the timing and methods of eliciting witness evidence, considering judicial specialisation, and setting firm timetables. Another key area for further research is initiatives to lower or better plan the cost of legal representation, which has a close but complex relationship with the pace of litigation. Other possible reforms focus on the court’s broader operations, including: protecting judgment writing time, and maximising the advantages that can be harnessed from modern technology. There is an urgent need to improve data about who uses our courts, whether or not they are represented, and how their cases proceed. Without this information, we are unable to design a civil justice system that responds to the needs of those using the court and that protects its important public function. ii Contents Glossary vi Table of Figures vi List of Tables vii Acknowledgments viii 1. INTRODUCTION 1 A. Research Questions 1 B. Our Position on Civil Justice 2 C. A Brief History of Civil Justice Reform 4 D. Context 6 E. Conclusion 7 2. PREVIOUS RESEARCH ON DELAY 8 A. History of Delays Research 8 B. Conceptualising Delay 11 C. Our Approach 15 3. METHODS 16 A. Overview of Research Design 16 B. Approvals, Consultation, and Access 17 C. Ethical Issues 18 D. Data Set Construction 18 E. Data Limitations 21 F. Quantitative Data Analysis 22 G. Qualitative Data Analysis 25 H. Mixed Methods Interpretation and Reporting Plan 25 4. THE COSTS OF A HIGH COURT PROCEEDING 28 A. Financial 28 iii B. Psychological 29 C. Conclusion 31 5. HOW LONG DO CASES TAKE? CAN WE EVEN TELL? 32 A. How Long Cases Take 32 B. Focus on General Proceedings 36 C. Distorted Data and Shifting Sands 37 D. Conclusion 39 6. HOW LONG SHOULD CASES TAKE? 40 A. Preliminary Notes 40 B. What Participants said about Ideal Length 40 C. The Variable Nature of Cases: “We’re not making Model T Fords here” 42 D. Time Passing ¹ Delay 45 E. Ideal Length is in the Eye of the Beholder 50 F. Summary: Delay is Not Just One Problem 53 7. COURT RESOURCES 54 A. The Doomsday Clock: Setting a Trial Date 54 B. Time to Write Judgments 62 C. Appeals and Related Cases 69 D. Slips or Mistakes 71 E. Conclusion 72 8. CASE CHARACTERISTICS AND PARTICIPANT CONDUCT 73 A. Case Complexity 73 B. Availability of People in Cases 78 C. Competence & Cooperation 85 D. Strategic Parties and Interlocutory Warfare 87 E. Type of Party 89 F. Conclusion 94 iv 9. THE BIGGER PICTURE 95 A. Justice, Accuracy, and Efficiency 95 B. Different Interests 96 C. Interests in Tension 100 D. The Communication Loop 102 E. Resources for the Court 103 F. Getting Better, but Room for Improvement 104 10. WHERE TO FROM HERE? 106 A. Case Management Cases 106 B. Counsel of Choice 110 C. Cost of Counsel 111 D. Protected Judgment Writing Time and Bringing Forward Trial Dates 111 E. Impulse to Centralise and Standardise 113 F. Technology 114 G. More Data, Better Data 117 H. Conclusion 118 11. BIBLIOGRAPHY 119 A. Articles 119 B. Books and Book Chapters 120 C. Reports 121 D. Conference Presentations 123 12. APPENDIX A – REFINING THE DATASET 124 A. Data Comparison and Integration with Phase II 124 B. Final Phase I Dataset 125 13. APPENDIX B – ISSUES WITH DATA ACCURACY 127 v Glossary CMS Case management system CEQL Christchurch Earthquake List LiPs Litigants in person Phase I Analysis of Ministry of Justice generated data from CMS Phase II Analysis of data from physical review of court files Phase III Interviews and focus groups Table of Figures Figure 1. An example of the précis in Phase II ..................................................................................... 19 Figure 2. An example of the coded précis in Phase II ......................................................................... 25 Figure 3. Case Study - Ben, Commercial Dispute ................................................................................. 30 Figure 4. Mean case length of civil cases heard in the main centre High Courts ............................ 34 Figure 5. Mean length of total case in days as a function of the six case types ................................ 36 Figure 6. Distribution of the length of general proceeding cases for Phase I and Phase II .......... 41 Figure 7. Leaky building case ................................................................................................................... 46 Figure 8. Estate Litigation ......................................................................................................................... 47 Figure 9. Case Study - Mark, Estate Litigation ...................................................................................... 51 Figure 10. Case Study – Dave, Commercial Dispute ........................................................................... 57 Figure 11. The proportion of cases settling at various points in the lifecycle of a case .................. 61 Figure 12. Contractual dispute with long period between hearing and judgment ........................... 63 Figure 13. Body corporate dispute with long wait to judgment ......................................................... 64 Figure 14. Case is "parked" for 38 per cent of its total life span ........................................................ 69 Figure 15. Case length according to the number of parties