Eight new Queen’s Counsel are appointed – but must we pay a king’s ransom to pay for their services?

Eight Queen’s Counsel have been appointed under a process that includes the new criterion of a commitment to improving access to justice, Attorney-General David Parker announced this week.

The new criterion, he explained,

” … emphasises that excellence and leadership in the profession can be seen through a wider, community lens.

“It is pleasing to see the profession is making a good contribution to access to justice.”

At Point of Order, we feel he should have done much more explaining.

What does he mean when he talks of improving access to justice and what have the new QCs done to facilitate this?

We ask because – according to our understanding – anybody can contact a lawyer and make an appointment for advice.

Whether they can afford to do this is a moot point.

A friend of ours, caring for a handicapped child and confronted by the prospect of being seriously disadvantaged financially during an acrimonious divorce and the carve-up of the couple’s assets, had no problem finding a law firm in Wellington willing to help her.

But the help would cost $450 an hour.

And that (we suspect) is just for starters.

Could the new QCs make the legal advice she needs more accessible by doing the job at a price she can afford?

Or does Parker and the government have other policies on their agenda to achieve this?

About a year ago the New Zealand Law Society published an article by lawyer Steven Zindel headed The parlous state of civil access to justice in New Zealand.

This noted 17,000 civil court cases had been disposed of in the year to 30 June 2017 (14,588 in the District Court and 2,370 in the High Court).

Zindel observed:

In too many of those, one or both parties were legally unrepresented. Employment Relations Authority figures, as a guide, indicate self-representation of applicants at time of filing ranges from 19.7% to 26.1% over the years 2015-2018.

Civil parties may well have an entitlement to legal aid but few lawyers are providing such services.

According to the official figures he used, from 1 July 2017 to 13 June 2018 there may have been 464 listed civil lead providers nationally (including employment and ACC lawyers) but only 35 were doing five or more cases in that period.

Reasons for the poor take-up by lawyers of civil legal aid work range from the amount of work required to establish financial or merits eligibility (especially if there are companies or trusts, which do not generally qualify at all) and demonstrating that the case is cost-effective, to the unrealistic number of hours that are approved, the effect of fixed fees in some cases, and the low hourly rates which are involved when there is private work available paying double or triple those rates.

Also, the taking of a civil legal aid case involves commitment to a substantial portion of unpaid work dealing with legal aid administrators over issues such as caveat or land charge authorisation and repayment.

The Ministry of Justice points out that only 1% of legal aid grants are civil, but Zindel asked: is that because there is no demand or because there is no supply?

In 2015, in an address to a New Zealand Bar Association Conference,  Justice Geoffrey Venning said  any litigant faces significant costs in bringing a case to the Court and having it determined.

“In some instances,  the costs may be such that the case is not brought or, if brought, may not be pursued. 

“In such cases access to justice is denied.”

The most obvious and direct costs are court fees and lawyers’ fees.

In 1992 it cost $140 to file a statement of claim in the High Court.

In 2015 this was $1,350 and a  five day hearing in the High Court would have incurred fees of $15,680.

We do not imagine those costs have declined since then.

Economists might argue that the tax payer should not be subsidise the resolution of civil disputes between individuals.

But Venning countered that this overlooks the importance of court judgments in the civil area.

Judgments of the courts do not merely provide private benefit.

The judgments of the Court and their precedent effect are an important means by
which society and commerce is regulated for the future. It is no answer to suggest
that parties to civil disputes have alternative dispute resolution (ADR) available to

Arbitrations in particular, (and also mediations, at times), are determined
against the background of the law as stated by the Court. The judgments of the
Court have an economic benefit to society as a whole in providing certainty and a
basis for advice and the regulation of conduct.

Zindel’s  concern was that a good case presented badly can lead to even a well-meaning and experienced judge not appreciating what is involved.

Moreover, an unrepresented party will have difficulty with pleadings, evidence and interlocutory steps. He or she will come across as less organised and confident, which will have an effect on the quality of justice.

 “These things matter because results which are not consistent with justice tend to undermine the rule of law, generally, and in the individual case. Litigants will nurse their grievances for a long period of time. This may affect their health or relationships in the future. The reputation of the court will also be affected if it is seen to preside over unjust outcomes.”

Generally, the community will see justice as the preserve of the well-off, Zindel contended.

That would  have an insidious effect on the ties which bind society and resolution of disputes, with people walking away from their disputes or settling too low out of despair or, instead, taking the law into their own hands.

The answer – he argued – is to encourage civil legal aid by trimming bureaucracy and improving conditions and rates so that cases which are the lifeblood of society may see the light of day and the courts will then continue to be an important safety valve for the pressures experienced by individuals who find themselves in disputes.

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