Tuesday 19 October 2010

Competitive law

I'm a fan of competitive legal systems - having competition in provision of law.

Of course, such competition is already happening. Arbitration has taken away sufficient business from the NZ civil courts that some are now wondering whether the government courts can maintain competence in the area. Writes the National Business Review:
Anthony Grant, of Radcliffe Chambers, was on the ball the other day when he spoke about the flight of potential litigants away from the courts.

Mr Grant reckoned more and more folk were being driven to arbitration, mediation and other initiatives to resolve disputes rather than go to court.

He is quite right. The swing towards “private courts” has been in full swing for some years.

With membership of the Arbitrators and Mediators Institute (AMINZ) now standing at 700, more disputes are being settled through this route because it is cheaper, quicker and binding.

If you don’t want your dispute picked over in a public courtroom or exposed by creepy little newsmen this is the way to go.

While AMINZ president Ann Edge couldn’t give figures on how many disputes went AMINZ’s way, Mrs Edge told Judge Jock a significant increase in membership in the last year indicated a greater use of arbitration, mediation and adjudication.

Leading lights in the “private court” system include Auckland law professor Bill Hodge and former High Court judges Sir Ian Barker, Bob Fisher and Barry Paterson and former Master Tomas Kennedy-Grant.

Anthony Grant was on the button when he noted there was hardly any High Court civil litigation outside Auckland. Some High Courts go for weeks without any civil cases.

At a recent Bar Association conference one judge was heard to wonder if the system was in a “death spiral.”

Lawyers also want judges to deal with cases within their designated specialist area. Some judges want a broader range of work.

But as Judge Jock has long campaigned, the courts do not exist for the convenience of judges – nor, for that matter, do they exist for the convenience and purses of lawyers.

Courts are for the maintenance of a credible system of civil justice, as Mr Grant rightly agreed.

But wait there’s more.

In his latest utterance, Mr Grant said he was aware of at least one enterprise that was so mistrustful of the senior courts it would not do business in New Zealand, unless the parties it contracted with agreed that all disputes would be litigated offshore.

He also reckoned other enterprises were not willing to do any business in New Zealand because of their lack of confidence in the courts.
And as a result of competition:
Chief High Court judge Justice Helen Winkelmann is so concerned she’s got together with Justices Geoff Venning and Forrie Miller to figure out how the High Court can be made a more satisfactory forum for dispute resolution.
Now, if only we could do it with the criminal law too....


  1. Some very good points here. The eye watering cost of civil litigation is part of the driver for people to seek alternatives; harder to see how that effect could operate in respect of criminal cases. Delay is also a factor, but it doesn't square with the idea of unemployed courts. I thought the High Courts were all clogged up with P cases.

  2. It's tougher to contract around the criminal law on the margins, sure. You can imagine stores perhaps offering some alternative to shoplifting prosecutions if such options would be in all parties' interest; hard to go a lot beyond that kind of thing without a wholescale shift to private law.

    I really don't know much about the High Court's docket.