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Legal adventures in New Zealand: litigation lessons from the Kiwis

Byron James, barrister, 14 Grays Inn Square recounts some of his experiences of the New Zealand legal system















Byron James, barrister, 14 Gray's Inn Square winner of the Pegasus Scholarship (New Zealand) 2013

Six months ago I was informed that I was being sent to the other side of the world, more in prize than in punishment. It is a little disconcerting to travel for so long and find somewhere so similar to home, albeit with far better weather and beaches. It exists as a parallel of what England could have been, could still be; the simpler, more naïve pseudo-sibling of over stressed, greying England. Agreeable in so many ways, with 'ah yeah' being the stock answer to most questions and pretty much the only way to start a sentence.

Much of New Zealand involves time travel. The slower paced, less globalised world that these chatty, friendly people wander about in is picture postcard of a time gone by in England. Picture postcard too in terms of the countryside; it never gets boring having your breath taken away by the scenery. Maybe England was this beautiful once, I doubt it. Time travel exists in the legal system too. Like grandmother's cottage in the woods with a real grandmother in the bed, litigation is pre-Woolf and operates at a more relaxed, clubbable pace. When witnesses get up to give evidence, which starts with an examination in chief whereby they read out their entire 'brief' (I never found out how these were different from witness statements), they are often greeted casually, "Hullo Mr Smith, sorry to trouble you with all this, could you just sit there and start reading…." Treating a witness normally rather than formally does come with the benefit of relaxing them straight away rather than struggling with the hard coldness of the English process. The reading itself can then take the rest of the day. It was never clear whether anyone had actually read what they were reading out beforehand, and if they had, why it needed to be read out now; perhaps there is perceived value in catching the live performance, one goes to the play rather than just reading the script at home. These readings can be tedious; at one point a judge threw his pen down announced 'this is torture by reading' and walked out.

The mode of address in court strikes a wrong note to the English lawyer's ear, with there being no ostensible set forms of address other than something suitably formal. The Supreme Court justices are routinely referred to as Sir; High Court judges as Your Honour and Sir. Judges by return, who are paid (significantly) more than judges back home, eschew formality themselves, one High Court judge saying to the witness 'ah yeah (told you), you mean that shonky shonk of a bloke". I found out later that shonky compounds shocking and wonky, building trade slang; the shonk being presumably slipped in for emphasis.

Judges range from the erudite to the parochial, impressively accessible to the downright inexplicable. One judge at a regional district court had to be fetched from trout fishing on the lake one morning because he had fallen asleep in his boat, keeping his list waiting. The amazing new Supreme Court building in Wellington is a design master class, perhaps aside from the barbed wire effect running along the top of the building, with no leave to appeal required here one wonders if it is intended as an implied message of 'keep out'.

As much as one might consider that one foot remains in the past, the other is firmly in the litigation future. There is a great deal that the English Courts could learn from New Zealand. Court hearings are recorded, but with such amazing efficiency that transcripts of the hearings are produced at quarterly intervals throughout the day. Hearings start at 10am and finish at 5pm, with breaks either side of lunch for 'coffee, reflection, toilet breaks and more coffee'. English lawyers often ask witnesses to 'keep their voices up because the microphone in front of you only records, not amplifies'. Not so here. As one plucky young English barrister discovered when instead of discreetly informing just his lead counsel who was opening the case that he was 'flying low' inadvertently let the entire court room know instead. "Shut that door" the judge rasped "we can't let a draft in, and tell your junior to focus on the case instead of your… well… you"

One solution to Court funding that they have found is to require litigants to pay a Court fee, the size of which is dependent on the length of the hearing, for the operation of the Court. This facilitates impressive additions to the Court process such as the recording mentioned above, but it has also advanced the process of 'e-courts' here.  Witnesses are given i-pads instead of bundles and experts use a very cool electronic white board, which captures what has been written on it and emails it directly to the judge and the parties prior to it being wiped off. Asking for a pen here induces a lot of lost patting of pockets and searching of bags, usually to no avail. Requiring people to pay for the Court they use is simply accepted as appropriate, and those involved are content with the consequential technological advancements and swish comfort; it also has the added benefit of making people litigate that little bit more carefully.

Mediation too is used brilliantly and consistently. It is a growing trend in England but efforts to make it compulsory and properly effective appear, as yet, not to have been very successful. There are excellent special mediators in England but not engrained into the system as the same way as they are in New Zealand. Maybe we are just behind. One significant difference is that mediations are taken very seriously. Lawyers attend, experts attend, they take days and there are proper disclosure rules which those taking part take seriously. In taking it a little more seriously, it costs a little more, but ultimately leads to savings in the long run.  

There is a very clear thread of social justice running through judicial reasoning here too, sometimes obviously at the expense of pursuing purer legal principle. There is a degree of flexibility, taking principles from other jurisdictions, Singapore, Canada, America, Australia, England et al, which results in very worldly judgments; a globalised legal system in a non-globalised country. As aforementioned, everyone has a right of appeal, which means that judges make their decisions knowing that an appeal is likely to follow, the opposite in England. One judge described it to me as 'very liberating', as judges don't feel that they are the last chance arbiter of the matter at hand: the difference between writing on a fancy electronic white board and carving in stone.

The trip culminated in an offer to stay, which was hard to refuse. The simpler, warmer (in every sense) distant world is easy to fall in love with, but I have always preferred the more complex, harder, or at least the less easy and life in London certainly provides that. As I think of the burden of boarding a plane, leaving the sunshine in December behind,  wondering whether I have made the right decision, I smile as I say 'ah yeah'.    

Byron James returns to practice in England on 1st December 2013