Rarely do civil claims in the District Court actually make it to trial in New Zealand. Figures vary between centres but the numbers show that in some places only 3% of claims make it this far. The vast majority of cases lodged with the court either settle or do not proceed.
The District Courts Rules have recently been replaced in an attempt to ensure civil litigation in New Zealand is more cost-effective and user-friendly for all parties and the court itself. These changes are due to come into force on 1 November 2009.
The new rules set out that the main objective of the District Court in civil litigation is to secure the just, speedy, and inexpensive determination of proceedings.
In recognition of the fact that more than 90% of civil cases will be settled before trial, and so do not require a hearing, the new rules place settlement as the basic objective in civil litigation.
The process for filing a claim in the District Court will change substantially to reflect the above. However, the upper figure of what can be awarded will remain at $200,000. Therefore, a plaintiff is still required to file their claim in the High Court if they wish to claim more than this amount.
After a claim has been filed in the District Court, a decision will be made as to what is the best forum for the claim to be determined in. The court will usually allocate claims of less than $20,000 to the Disputes Tribunal (whose jurisdiction has been increased to $20,000 – or $15,000 if the parties do not agree to extend it to the higher amount – on 1 August 2009). Claims above this amount or which are not appropriate to be determined in the Disputes Tribunal will remain in the District Court and will be allocated either a judicial settlement conference or a short trial.
Judicial settlement conference
A judicial settlement conference (‘JSC’) is a meeting between the parties and their lawyers led by a judge.
The judge works with the parties in an attempt to reach a settlement of the claim. This is done through negotiation and mediation.
JSCs already occur in the District Court. However, currently, both parties must consent before a court can allocate one. Under the new rules a JSC will be deemed a first priority and allocated whether or not both parties agree to it.
Short trials
Short trials are new in the District Court process. They have been created by the new rules.
Short trials are intended to deal with simple claims involving only one or two witnesses on each side that do not require more than a day to hear.
A claim will be allocated a short trial only if the court is satisfied that the time required for the short trial is less than the time required for a JSC.
What if claims do not settle at the JSC?
If a JSC is allocated and settlement cannot be reached then a hearing is necessary. The judge who conducted the JSC will make directions as to what type of hearing is deemed necessary and allocate it accordingly. The judge will have three options under the new rules:
- Summary judgment
- Simplified trial
- Full trial
Summary judgment consists of a judge hearing from both parties and making a decision without hearing from witnesses except by affidavit (sworn written) evidence.
Judges conducting JSCs will allocate claims to be heard by way of summary judgment rarely and only in cases where they are confident the defendant has no reasonable ground of defence.
A simplified trial will be used for cases that involve a small number of issues and/or a small number of witnesses. It is expected judges will select this option the majority of the time for claims that do not settle at the JSC. At a simplified trial there are time limits for the presentation of and challenge to evidence, and only 30 minutes is allowed to each party to present legal submissions and argument.
Full trials in the District Court will be similar to those conducted in the High Court. This will be a long and expensive process with extensive procedural requirements. As a result, judges will only allocate full trials where there are many issues and/or witnesses.
What if the defendant ignores the claim?
A plaintiff can be awarded judgment by default if the defendant fails to attend court when required or does not act in accordance with the court’s directions. As a result, plaintiffs will have a more effective tool to counter delay or inaction on the part of the defendant.
Conclusion
Traditionally, it has just been accepted that civil litigation is a very long, expensive and sometimes very unsatisfactory process. However, the new rules will help ensure claims are dealt with as simply, cheaply and as promptly as possible. It is hoped that unnecessary delays will be a thing of the past.
Judicial settlement conferences will be the primary resolution resource under the new rules. Shortened trial processes will be a secondary priority. Full civil trials will be a last resort because of their inherent cost and delay.
© Gascoigne Wicks
Email: karnott@gwlaw.co.nz
Website: www.gascoingewicks.co.nz