Monday, 27 November 2017 12:18pm
Despite perceptions of a slow system, the wheels of justice are turning smoothly in most court cases, according to a major University of Otago-led study.
However, this finding comes with a qualification: just looking at average case length to see if a system is fast or slow will not reveal the full picture about how effectively it functions.
In a New Zealand first, Otago researchers investigated the length of High Court civil cases to examine if, and where, delays occurred. They also explored ways to improve the system.
Lead author and Director of the Legal Issues Centre at Otago’s Law Faculty Dr Bridgette Toy-Cronin says there is “a common perception that there is widespread delay in our courts’’.
If proceedings are delayed, that is a key obstacle to accessing justice and creates both financial and psychological costs for the litigant. One litigant described this stress as a nightmare.
However, the study found that most cases do not take as long as this litigant’s did. High Court cases concluded, on average, in about six months (191 days). But one class of cases – general proceedings – took much longer, an average of 13 months. This was still considered reasonable by the judges, lawyers and court staff who were interviewed, as they considered a range of 12-24 months acceptable. However, 18 per cent of general proceedings took more than two years.
The research, conducted by the University’s Legal Issues Centre and co-funded by the New Zealand Law Foundation, included a quantitative analysis of Ministry of Justice data, analysis of physical court files, and interviews with lawyers, judges, court staff and litigants.
Dr Toy-Cronin said an important finding of the study was that overall length does not tell the full picture.
“You have to look much deeper to see what is really happening. It might be good that a case is short or it might be unjust, as it only ended because one party ran out of money. A long case might be a bad for the litigants or there might be good reasons for the time passing, like waiting for remedial work to be done on a property.
“We have to be more sophisticated in thinking about what we want from the justice system. Speed is one important goal but so is fairness and justice and keeping down cost.”
Where delays do occur, they are caused by a range of issues including a lack of judicial time to promptly hear fixtures and deliver judgments, the difficulty in getting all the participants – lawyers, experts, litigants – to coordinate their schedules, litigants engaging in strategic delay, or lawyers not being thoroughly prepared.
"Courts are part of a complex system involving lots of people. There are many participants who each respond to their own pressures and incentives. Any solutions must take into account this complexity,'' she says.
The researchers recommended that potential solutions to address various causes of delay include earlier identification of issues in dispute; greater inclusion of litigants earlier in the process; improving the timing and methods of eliciting witness evidence; considering judicial specialisation; protecting judgment-writing time; and harnessing the benefits of modern technology.
Another key area for further research is initiatives to lower or better plan the cost of legal representation, as legal expenses have a close but complex relationship with the pace of litigation.
Dr Toy-Cronin says there is also an urgent need to improve data about who uses our courts, whether or not they are represented, and how their cases proceed.
"Without this information, we are unable to design a civil justice system that responds to the needs of those using the court and that protects its important public function.’’
The Wheels of Justice: Understanding the Pace of Civil High Court Cases.
University of Otago Legal Issues Centre
Dr Bridgette Toy-Cronin; Dr Bridget Irvine; Kayla Stewart; Prof Mark Henaghan.
The Wheels of Justice report is available to read and download here:
Toy-Cronin, B., Irvine, B., Stewart, K. and Henaghan, M. (2017) The Wheels of Justice: Understanding the Pace of Civil High Court Cases. University of Otago Legal Issues Centre.
Dr Bridgette Toy-Cronin
Director, Legal Issues Centre and Senior Lecturer
Faculty of Law
University of Otago
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