University of Otago Faculty of Law Keeping Up Appearances: Accessing New Zealand’s Civil Courts as a Litigant in Person Bridgette Toy-Cronin A thesis submitted for the degree of Doctor of Philosophy 31 July 2015 Abstract It is commonly believed that more and more people are going to court without a lawyer, both in New Zealand and in other common law jurisdictions. The right to appear in court in person is essential to the legitimacy of the courts. That legitimacy would be harmed if the courts were only accessible to those with the means to pay for legal representation. When litigants take up their right to appear in person, they encounter a system primarily designed for lawyers, however. So they confront a fundamental contradiction: the courts must appear to be accessible to litigants but they cannot grant too much access or they will be choked by the demand. Furthermore, the right of access in person lacks substance in many cases, because the system cannot easily be navigated without a lawyer. Using several qualitative methods including interviews, document review and participant observation, this thesis asks, first, why are litigants going to New Zealand’s civil courts without a lawyer? Second, what is their experience of litigating in person? Third, how do the inhabitants of the court system – the judges, lawyers and court staff – perceive litigants in person and respond to them? The research participants included litigants in person (LiPs) (34), court staff (8), lawyers (16) and judges (13), so that their different perspectives could be considered. The study began with a detailed exploration of the perspectives of LiPs, who participated either in interviews or via a case study. Only after this aspect of the research was complete did I interview court staff, lawyers and judges. By studying all participants in the court process and using multiple methods of qualitative inquiry, the emphasis was placed on systemic explanations for LiPs’ interactions with the court system. The thesis begins by considering why people decide to litigate in person. It then traces the experience of being a LiP, and the perceptions judges, lawyers and court staff have of LiPs, through the different stages of the court proceedings: before court, when proceedings are filed and LiPs seek advice and information; then at the courtroom door, when negotiations take place; in court, where LiPs present their case; and finally after court, when the judgment is handed down and issues about costs, enforcement, appeals and complaints arise. The thesis argues that there is a contradiction underlying the promise of LiP access to the courts. The courts promise a forum to vindicate citizens’ rights. Without this forum, their rights are empty, merely occurring on the books and not in reality. Yet the courts do not have the resources to hear all the claims citizens have. Even expansion of their resources would not be sufficient, as demand ii is elastic. So, to appear to provide justice and control their process, the courts must both promise and limit access simultaneously. Normally lawyers play a central role in mediating such access, by screening and translating claims, and negotiating clients towards settlement. LiPs come straight to the courts, however, and threaten this delicate balance. They also struggle to access the courts in a meaningful way, not necessarily because of any particular personal deficits, but because there are so many complexities and conflicts that cannot be easily overcome by a litigant advocating their own cause. Various subtle means of discouraging access are deployed to steer LiPs away from accessing the courts in person while trying not to undermine the appearance of accessibility. The thesis considers various policy reforms and encourages a re-evaluation of the stereotypical view of LiPs, as a means by which the delicate balance between projecting accessibility and protecting the scarce resource of court time might be somewhat restored. It also argues that reforms within the court system alone cannot offer a complete answer. Broader social responses, that address access to justice for people likely to become LiPs, must look beyond the courts, to policies that address inequalities of wealth and promote social justice. iii Acknowledgments My grateful thanks to my primary supervisor, Professor John Dawson, whose professional, calm, confident supervision of this project has helped maintain its momentum and whose incisive reading of drafts has encouraged clarity. Associate Professor Nicola Taylor, my secondary supervisor, I thank for her unstinting faith and encouragement, careful editing and insight. My thanks also to my original supervision team, Professor Kim Economides for his entrée to law and society research and for encouraging novel methods of exploring of my chosen topic, and Professor Richard Mahoney for his comments and questions throughout. A special thanks to the late Professor Mike Taggart for his encouragement and confidence in me, which started me on my path as a researcher. I have missed his presence during this project. And to Brian Johnston at Otago’s Graduate Research School, for reminding what Professor Taggart first showed me, that there is much joy to be had in research. I wish to thank the generous funders of this research – the New Zealand Law Foundation which paid a generous stipend and the University of Otago for meeting my tuition costs. The funding has allowed me the luxury of a single professional concentration for the last three years. I also wish to extend thanks to the Te Piringa-Faculty of Law at the University of Waikato, who have provided a welcoming collegial home in Hamilton. This research would not have been possible without the willingness of the litigants in person, many of whom were still in the throes of stressful court proceedings, to be interviewed and sometimes observed. I thank them all for generously allowing me into their experience. Equally important was the participation of court staff, lawyers and Judges, whose willingness to share their practice and ideas, and to have these held up to scrutiny, demonstrates their commitment to the ideals of the legal process. I hope this thesis does all the participants’ perspectives justice. Last but not least, thank you to Kelly, my husband and friend, for his love and support. To my mother Marguerite, my thanks for looking after our boys while I worked. Kelly and Marguerite, you have made my goal of completing a PhD a reality; it would not have been possible without you. And to our boys Jerome (5 years) and Fergus (3 years) who have taught me so much – I thank you for your patience, your games, your hugs, and your smiles. iv Table of Contents List of Tables .............................................................................................................................................................. ix List of Abbreviations .................................................................................................................................................. x Notes ............................................................................................................................................................................ xi Chapter 1 - Introduction ...................................................................................................................1 I The New Zealand Context ........................................................................................................................... 3 A. Evolution of Litigating in Person, Representation and Financial Assistance to Litigants........ 3 B. Current Legal Advice Landscape in New Zealand ......................................................................... 8 II Scope of Inquiry ........................................................................................................................................... 10 Chapter 2 - Literature Review ......................................................................................................... 13 I How Many, Who and Why? ....................................................................................................................... 13 A. How Many? ......................................................................................................................................... 13 B. Who are they? ..................................................................................................................................... 16 C. Why Litigate in Person?..................................................................................................................... 21 II Civil Justice, Lawyers and Litigants in Person ......................................................................................... 24 A. What is the alternative? The service and structure of the profession ........................................ 24 B. LiPs’ Outcomes and Experiences of Adjudication ....................................................................... 30 C. The Purpose of Civil Justice ............................................................................................................. 34 III Responses ...................................................................................................................................................... 37 A. Responses within the Courts ............................................................................................................ 38 B. Alternatives to the Courts ................................................................................................................