Chapter 11
Civil jury trials in the High Court


11.6Submitters had mixed views on civil jury trials. One view was that a new Courts Act would be an appropriate vehicle for abolishing them altogether. Arguments in support of this included the low number of civil jury trials, the length of time taken to select and empanel a jury, the difficulty in getting juries that are a fair cross-section of society, and the complexities of defamation cases (where civil juries are most often used).

11.7The New Zealand Law Society said there was a lack of unanimity among its members regarding retention of civil jury trials, with some members of the view that civil jury trials are capricious and ought to be abolished, and others considering they should be retained, at least for certain cases. Those who favoured retention did so on the basis that in some cases the buffer the jury provides between the “establishment” and the claimant can be very important, particularly in circumstances where the claimant is a challenger or critic of the establishment. As well, in certain cases there is a risk a judge alone may be less in touch with common usage and so have a different view of whether an injustice has occurred than would the claimant’s peers. Supporters of jury trials stressed it is an important right that should not be removed lightly. Further, safeguards currently exist to ensure complex legal cases are not tried before juries.

11.8The Law Society submitted that if civil jury trials are to be kept, the $3,000 threshold should be “increased substantially”, and they should be limited, as in other jurisdictions, to certain types of cases, including defamation, malicious prosecution and false imprisonment.

11.9The New Zealand Bar Association’s submission noted consistency of verdicts across civil jury trials is considered to be significantly more elusive than in judge-alone civil trials, and the cost of civil jury trials is not warranted by their number. However, it submitted that civil jury trials continue to have a very important part to play in defamation cases:

Assessment of character by one’s peers, particularly in the face of important defences such as truth, honest opinion, qualified and absolute privilege is considered to properly be the domain of citizens. The reputation in which a plaintiff is held by his or her fellow citizens is, it is considered, a proper issue for the retention of jury trials in defamation.

11.10The Senior Courts’ judges submitted that there is no compelling case for retaining civil juries, but said they would not oppose retention of the right to a civil jury for cases such as defamation or false imprisonment.