The Growing Irrelevance of the Civil Courts
5 The Windsor Yearbook of Access to Justice 327 (1985)
26 Pages Posted: 17 Dec 2012 Last revised: 23 Feb 2015
Date Written: 1985
Through the eyes of a legal educator, law reformer, practicing lawyer and finally parliamentarian, the author examines the problems of the civil courts and how they provide access to justice. As a legal educator, the author discusses his experiences of teaching courses which focussed upon alternative methods of dispute resolution in a North American law school. As law reformer, the author discusses his experiences associated with the introduction of New Zealand accident compensation legislation. The more legalistic administrative regime of handling accident compensation is contrasted with that of the bureaucratic welfare benefits scheme. As parliamentarian, the author discusses the significant role a member of parliament plays in providing his or her constituents an alternative means of resolving disputes involving the state, and in particular how civil litigation is dismissed by constituents as a viable means of dispute resolution.
To concentrate upon disputes and their resolution is not necessarily to concentrate upon the law and courts. The task of resolving conflict may not be served best or most efficiently by dealing with legal rules and courts. As a teacher the materials taught the author that a narrow focus on court oriented methods of dispute settlement is dangerous. Lawyers should be encouraged to search for new techniques of resolving conflict and the dynamics of conflict should be examined if solutions are to be found. While the author taught torts law in the honest belief that traditional bodies of legal doctrine such as torts could protect important interests through civil litigation, his subsequent experience has made him question the usefulness of the civil courts for a large segment of the population.
The paper considers the reform of civil litigation associated with the law of negligence in personal injury law, and the replacement of personal injury civil compensation with the accident compensation scheme in New Zealand. The principle behind such a scheme is to produce swift and certain answers rather than tailormade assessments in every individual case. It discusses the Woodhouse Reports from both Australia and New Zealand, which evaluated the process of civil litigation and found that such a system seriously impeded rehabilitation of the injured person, involved high levels of legal costs, clogged the courts and made a negative contribution to accident prevention.
Despite the reform of civil litigation for personal injury in New Zealand, however, there has been almost no diminution of cases in the civil courts. A large number of other fields of civil work appear to have expanded at a time when the accident cases were running down. These include matrimonial property issues and the growth of administrative law. How can the civil courts be irrelevant when their business is expanding? The removal of the personal injury action in New Zealand has made the civil courts less relevant to the ordinary person than before. Appeal procedures through the Social Security Appeal Authority are not always accessible for those on benefits, who are often elderly, infirm, in poor health, or under-privileged. Administrative justice is often carried out through advocacy on the part of MPs for their constituents, and not through the civil courts. While New Zealand has a reasonably good system of civil legal aid it involves examination of means and litigants are expected to make a contribution to the expenses in proportion with their ability to pay. The question of expense is an extremely important deterrent for many. Negligence, nuisance, defamation, trespass to land, the police torts are often highly relevant to the needs of ordinary people, but they just do not bother because it will take too long, cost too much or involve a lot of trouble.
Keywords: civil courts, tort law, civil litigation, negligence, access to justice
JEL Classification: K13, K19, K32
Suggested Citation: Suggested Citation