NZ has become a country of first- and second-class citizens – those who can afford to use the law to their advantage and those who are locked out. In election year, it's time to change that, writes Devika Dhir
Opinion: New Zealand has long been considered a model of egalitarianism. That claim, “a rich amalgam of truth and myth”, has been under attack and the state of access to justice in New Zealand is another puncture site.
We cannot lay claim to being a society “everyone is able to participate in and belong to” when only the rich can afford to access justice.
Rather, New Zealand has become a country of first- and second-class citizens – differentiated by those who can afford to use the law to their advantage and those who are locked out.
Consider, for example, why 41,000 beneficiaries receiving less than their full entitlement under the Accommodation Supplement Benefit, over the course of two decades, never legally challenged the error. Instead, it only came to light when MSD conducted a self-review.
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But to Winston Peters money was no object in the quest for vindicating his rights when he undertook unsuccessful litigation costing around one million dollars for a breach of privacy claim involving two opposition politicians.
Civil justice is important. Access to it is the basis upon which our social contract rests. We willingly gave up the right to enforce our claims against one another through hand-to-hand combat – allowing the state a monopoly on violence – in return for the rule of law. We preferred a system where disputes were resolved by an impartial and authoritative third party over the pre-political state of nature Thomas Hobbes imagined as descending into a “war of all against all”.
Thus arrived the political state with its defining feature of equal access to justice for all. A state creating the conditions for the peaceful co-existence of all political subjects mediated by a common set of enforceable laws. A state where all could reap the rewards of the social contract: the peace and prosperity that result from being able to press your interests and defend your rights.
The political state came with a promise of the contented life, defined by a capacity to exercise autonomy without arbitrary interference.
Over a five-day averagely complex trial in the High Court, a party can expect to incur $147,725 in costs, made up of courts fees and lawyers’ fees. In the case of an unsuccessful claim, costs awarded against a party could as much as double that amount.
The echoes of this sentiment are found in the constitutional law of this country and human rights law.
The Magna Carta proclaims, “to no one will we sell, to no one will we refuse or delay right or justice”. The Statute of Westminster 1275, one of the first pieces of legislation adopted in colonised New Zealand calls for “common right be done to all, as well poor as rich, without respect of persons”.
The Universal Declaration of Human Rights, adopted in response to the atrocities of the Second World War, in the very first sentence recognises that the existence of “freedom, justice and peace in the world” depends on all members of the “human family” having equal rights. In similar terms, the International Covenant on Civil and Political Rights creates an obligation on the New Zealand government to respect, protect and fulfil every Kiwi’s right to equality before the law.
Sounds rather heady, does it not? Especially when we compare the promise to present reality. The mismatch is plain: only those with money to spare can access justice. For others, cost is an insurmountable obstacle in the quest to access justice in the courts.
An expensive business
Over a five-day averagely complex trial in the High Court, a party can expect to incur $147,725 in costs, made up of courts fees and lawyers’ fees. In the case of an unsuccessful claim, costs awarded against a party could as much as double that amount.
Add to that the emotional, mental, opportunity, and, time costs and stresses that are as much a characteristic of adversarial litigation as financial costs and we come to the conclusion that surprises no one: going to court to access justice is expensive business.
What are the options for someone wanting to exercise this right?
Self-funding is one option. As explained above, $147,725 is the bare minimum financial cost involved in an averagely complex five-day High Court trial. Yet, it is significant. And it is significantly out of reach for a large proportion of Kiwis.
Equivalised household disposable income is a useful indicator of the economic resources available to a household (equivalisation removes the effect of different household sizes and compositions on estimates). For the year ended June 2021, the average disposable income available to an equivalised household was $50,164. For such a household, is it affordable to incur three times that amount to access civil justice in the courts?
Civil justice is the space to which all other aspects of our political lives are ultimately answerable and where all our rights come to pass. Healthcare entitlements, employment relations, property rights, dealings with neighbours are all realms governed by laws that, for a final resolution, must come before a court.
Looking at the wealth statistics is no better. The median household had a net wealth holding of $397,000 for the year ended June 2021. That means that a household sitting at the median would have to expend almost half (at least) of their net wealth to see through a five-day trial. It would be farcical to say that such households can afford to avail themselves of their right to access justice in the courts.
Then Justice Minister, Andrew Little confirmed as much, acknowledging in 2020 the existence of a civil justice gap, He described it as “uneconomical for the average punter" to get justice.
Chief Justice Helen Winkelmann confirmed that, too: “Over the course of my career… I have seen the cost of litigation move out of the reach of those in a middle-income bracket”.
So, what of the large number of those who cannot afford to self-fund their pursuit of justice? There is the option to represent oneself in court or seek legal aid.
Legal aid
Problems abound with the legal aid system of New Zealand. Eligibility is set at a threshold so low that only the most income-deprived qualify. Those on the minimum wage, for instance, would not be eligible.
Once the impossibly low income threshold for eligibility is met, the conditions that attach to legal aid render it not just unattractive but infeasible. This is because legal aid generates a debt which must be repaid with interest. Additionally and onerously, it comes with a security charge over the applicant’s house or other significant asset.
Being unable to pursue a claim for lack of money is a denial of access to justice for the individual and undermines the rule of law generally. It is not something we should become accustomed to in a democracy.
Then there are the limitations as to what kind of cases can receive legal aid and, in some situations, the requirement to show that it would be in the public interest to bring the case.
But that’s not all. Jumping successfully through all those hoops provides no guarantee because of the supply side issues. Stagnantly low legal aid remuneration rates and the enormous administrative burden involved has meant acute shortages of legal aid lawyers.
Between 2011 and 2016, following the reforms of the legal aid scheme, the Law Society recorded a 54 percent decrease in the number of registered civil legal aid providers. In sum, for those hoping to access justice without the private funds to do so, legal aid is a theoretical option only.
Representing oneself
Can you go at it alone? Self-representation has become commonplace in civil cases.
Research has cast doubt on how fair the resulting trial can be, but at the very least, the self-represented party’s perception of whether ‘justice was done’ is compromised.
Not only do self-represented litigants absorb a “justice deficit” (where the outcome is worse than it would have been with legal representation) but also cause an “efficiency deficit”, requiring the court to spend extra time and effort to account for a self-represented party’s unfamiliarity with the process.
The final option and one taken most, then, is giving up.
To quit – or to reform
Being unable to pursue a claim for lack of money is a denial of access to justice for the individual and undermines the rule of law generally. It is not something we should become accustomed to in a democracy.
It is easy to dismiss calls for reform of the civil justice space by imagining it as an arena for large corporates suing one another over trivialities. But that’s not all civil justice is. It is not a public service like any other, competing for a budget allocation.
Civil justice is the space to which all other aspects of our political lives are ultimately answerable and where all our rights come to pass. Healthcare entitlements, employment relations, property rights, dealings with neighbours are all realms governed by laws that, for a final resolution, must come before a court.
And it is court that is the only place where those laws can be authoritatively and publicly interpreted, allowing us all to see justice being done and giving us the ability to order our affairs accordingly.
It is this fundamentality of access to justice that requires addressing the root of the problem; that is, seeking vindication of one’s rights according to law is too expensive for the ordinary person.
An often-suggested solution is to require lawyers to complete a certain amount of pro bono work. Imagining that such versions of ‘legislative charity’ could be enough to meet constitutional and consequential entitlements is a dangerous proposition.
Such a complex problem demands more creative solutions involving the interrogation of the role played by lawyers’ fees, governance of the legal profession, jurisdiction of the courts as well as other legal fora and our way of delivering justice itself in contributing to the situation as it stands today.
Civil justice is a necessity. Its absence threatens the social contract.
It is time for political parties to recognise that in their Budget 2023 aspirations and election manifestos.
