10.41It would not be sensible for any jurisdiction to introduce change into a quality generalist jurisdiction unless the need to do so can be properly demonstrated. We have endeavoured to get to grips with how much work there is in particular categories of proceedings in the High Court, that might attract the need for panel attention.
10.43There are then 8 specific shared outcomes which are sought to be advanced. There is a very heavy emphasis in those desired outcomes on crime reduction and offenders being held to account. Indeed no direct outcome relating to civil justice is listed at all. The nearest is Outcome 4 “Accessible Justice Services” which “seeks that individuals and communities have access to resources, legal information and representation, as necessary, so that they can have their rights upheld and fulfil their legal obligations”. It is a fair comment on the objectives of the justice sector, as thus expressed in the Annual Report, that civil justice does not rate anywhere near the top of the list. Hence, for reporting purposes, the statistical priorities reflect the outcomes sought to be achieved.
10.45Over the last quarter of a century the judiciary has expressed concern about the lack of statistics as to the character of work going through the courts. This would tell Heads of Bench, List Judges and indeed the judiciary and the public generally, what kind of things are being dealt with, and to what extent, by our courts.
10.47The Chief High Court Judge has rightly been concerned to try and “excavate” (to use her terminology) relevant figures. For instance, it has been established that in 2007 the High Court disposed of 1,349 general proceedings; in 2011 the Court disposed of 2,062. Between six to 10 per cent of civil proceedings were disposed of through a full defended civil trial. But a high percentage (nearly 25 per cent) of High Court civil cases are disposed of by summary judgment today. It is useful at this point to also note, because of the importance of it in the context of the High Court, the figure of 157 judicial review applications disposed of in 2011.
10.48The Ministry of Justice has however been able to assist the Commission with figures from one specific exercise. A sample of physical civil court files was reviewed in the Wellington and Auckland High Court registries in 2010. In Wellington, a sample of 95 cases from the civil ready list that was disposed of between 1 January 2008 and 28 April 2010 was reviewed. A sample of 140 civil cases in Auckland (mostly general proceedings) that were filed between 2008 and 2010 and were subsequently disposed of was also taken from the civil ready list. The sample had to be restricted to those years due to restrictions around accessing archived files. There is an admitted difficulty with this procedure in that older cases (which often require more time to hear and extensive case management) were excluded.
10.49The material so reviewed produced the following outcome.
|Breach of Contract||14|
|Breach of Fiduciary Duty||3|
|Breach of Statutory Duty||2|
|Citizenship Act 1997||1|
|Companies Act 1993||6|
|Damage to Property||2|
|Department of Social Welfare||7|
|Enforcement of Judgment||1|
|Fair Trading Act 1986||3|
|Family Protection Act 1955||1|
|Incorporated Societies Act 1908||1|
|Insolvency Act 2006||1|
|Land Act 1948||1|
|NZ Bill of Rights Act 1990||3|
|Property (Relationships) Act 1976||1|
|Property Act 1952||1|
|Public Works Act 1981||1|
|Trustee Act 1956||2|
|Bill of Exchange Act 1908||1|
|Citizenship Act 1977||1|
|Companies Act 1993||13|
|Fair Trading Act 1986||14|
|Insolvency Act 2006||2|
|Leaky building claim||12|
|Māori Customary Law||1|
|Maritime Transport Act 1994||1|
|Partnership Act 1908||1|
|Public Works Act 1981||1|
|Resource Management Act 1991||1|
|Sale & Purchase||9|
|Trustee Act 1956||1|
|Unit Titles Act 2010||1|
|Bill of Exchange Act 1908||1||0.42|
|Breach of Fiduciary Obligation||3||1.27|
|Breach of Statutory Duty||2||0.84|
|Citizenship Act 1977||2||0.84|
|Companies Act 1993||19||8.02|
|Damage to Property||2||0.84|
|Department of Social Welfare||7||2.95|
|Enforcement of Judgment||1||0.42|
|Fair Trading Act 1986||17||7.17|
|Incorporated Societies Act 1908||1||0.42|
|Insolvency Act 2006||3||1.27|
|Land Act 1948||1||0.42|
|Leaky Building Claim||17||7.17|
|Māori Customary Law||1||0.42|
|Maritime Transport Act 1994||1||0.42|
|New Zealand Bill of Rights Act 1990||3||1.27|
|Partnership Act 1908||1||0.42|
|Property (Relationships) Act 1976||1||0.42|
|Public Works Act 1981||2||0.84|
|Resource Management Act 1991||1||0.42|
|Sale & Purchase||9||3.80|
|Trustee Act 1956||3||1.27|
|Unit Titles Act 2010||1||0.42|
10.50This classification was done by court staff based on their interpretation of the relevant statements of claim. Consequently the classification is not necessarily as accurate as if it had been done by legally trained people. And because a large number of case categories were used, each of which was relatively small, it is difficult to get a broad sense of the overall classes of case. The samples also excluded a number of cases that settled. Nevertheless, there are features of interest in the tables.
10.51First, contract-related cases were over one third of the total. And, it is likely agreements for sale and purchase were in some sense contract disputes also. Fair Trading Act cases were close to 20 per cent, as were leaky building claims. Many other categories, however, had only one or two claims.
10.52As a comparison, in the Commercial Court in London some 1331 claims were issued in 2011. Around 54 per cent of these related to breach of contract, agreement or debt.
10.53As to commercial work “diverted” away from the High Court to alternative dispute resolution, the Commission is not, and nor is anybody else, in a position to get behind the decisions made by commercial solicitors, their clients and senior counsel as to why and how much work goes in a particular direction outside the High Court. Those discussions are confidential, and we cannot “discover” them out of court records. Patently, a number of factors must enter into such a decision, amongst which must be practical accessibility to justice, cost, and the timeousness and quality of a given result.
10.54We do, however, consider that the concerns expressed by commercial solicitors and counsel that this diversion is occurring are entitled to real weight. It seems there has been a respectable “bleeding off” of civil litigation where there is a choice of the means of disposal of a dispute. That aspect, according to the Bar, has contributed to the rise, or at least fuller use of, alternative dispute resolution, and less use of the formal civil justice system.
10.56Leaving aside such statistical evidence, there is the awkward question of whether there is a want of confidence in some High Court judges, particularly in the commercial law area.
10.57It has been suggested to the Commission, and asserted in some professional literature, that some High Court judges are regarded as professionally “weak” in this area. And that this has had the unfortunate effect – given that litigants do not know what judge they are going to get in advance – of diverting some work away from the courtroom door, at the outset. Counsel, or so it is said, do not want the courtroom risk of an underperforming judge.
10.60Statistics are not all: how things present themselves to the business sector is an important intangible element. And there can be little doubt, given the worldwide acceptance of its importance in many jurisdictions, that the actual “availability” – regardless of the numerical impact – of a commercial court or panel is perceived to be of some moment. It is a confidence factor in a particular jurisdiction that is not easily quantified.
10.61Part of the strategy of the present New Zealand administration is to encourage a growing and vibrant economy. Commercial disputes are necessarily part of any such regime. Efficient and adequate dispute resolution mechanisms are an important support mechanism. So is “certainty” in commercial law. That can only be supplied by the courts. Mediators and arbitrators need to know what the current legal context is in which to assess matters which come before them. In that sense, in-court and out-of-court dispute mechanisms are complementary.
10.62The point was rightly made to the Commission that, in rules of court terms, what were “innovations” in the Commercial List have, along with further developments, taken (or are about to take) their place in the standard Rules. That has been the lasting legacy of the Commercial List: overall, better case management.
10.63That, by itself, will not however yield up what seems to be at the heart of the concern of the Bar and the commercial community: the need for judges who “know” their commercial law through and through, for ready application in the particular case.
10.64Patently, a number of the present High Court judges do not welcome the prospect of a number of judges being “siphoned off” from the general High Court pool to serve a respectable percentage of their time on a commercial panel.
10.65Our response is three-fold. It is the proper needs of the public which come first. Secondly, distinctions have always had to be made in the judiciary, for particular purposes, such as divisional appellate courts and the like. The judicial principle has to be that a judge serves where, and as, required. Thirdly, as we suggested in Issues Paper 29, “panel judges” should still be required to do other High Court work.