A Field Trip to the Bankruptcy List

I’ll come clean now about the fact that one of my favourite things to do in whatever town or city I’m in is to go into a court that is in session and watch. It isn’t everyone’s idea of tourism but I love to see the different styles of courtrooms, watch the local lawyers, and see how different judges manage their courts. I’m not so interested in the substance of the cases, which is often inscrutable as the judge and lawyers have read the papers and I have no access to them, it is more a form of people watching. Lists are my favourite as it is good bang for the buck in terms of the variety of lawyers, litigants, and cases.

This week I popped in (with my colleague) to watch a bankruptcy list in a beautiful old courtroom. There were a number of things about the list that gave me pause though because they speak to some big concerns about access to the courts and also access to justice.

At the practical level this beautiful old courtroom had a number of pretty big problems for the public:

  1. It was freezing. This was probably gratefully received by the lawyers, judge and court taker who were all wearing robes over suits, but in the public gallery, it was plain old unpleasant.
  2. The seats were wooden benches. One bench had a thin cushion on it but the others were just long-form wooden seats. High on historic style, low on comfort. Now I can take a bit of discomfort in pursuit of my court-watching hobby but there were some positively elderly people in the courtroom and I felt for them.
  3. The courtroom was up two flights of wooden stairs. One elderly attendee was on crutches and had to creep up the stairs and then back down again to access the court. It may well be that there is some alternative access that can be arranged through the registry to access the courts by a lift, but if there is, it definitely wasn’t clearly signposted.
  4. The judge, lawyers and court takers were almost inaudible from the public gallery. It wasn’t a big room but the sound went dead and I had to strain to hear anything. Even the names of the cases being called were difficult to understand.

Now that all adds up to some pretty serious problems of inaccessibility for people like me who want to just go on in to court to watch. What really concerned me though is that the people who surrounded me in the public gallery were not hobbyists, but people there because they were in the process of being adjudged bankrupt. They were all litigants in person (people not being represented by a lawyer) so they were there to listen to the judge, to the lawyer representing the judgment creditor and to give the judge their side of the story.

The court-taker (the court staff member who runs the courtroom) called the name of the cases in a barely audible monotone. After a decent silence, if no one stood up, the judge would make an order on the file (striking the proceeding out, entering judgment, adjourning). There was no effort beyond this to check who was in the court e.g. “Mr Smith, are you here in court? Anyone here for Mr Smith?”.

Eventually a case was called where someone was in court and who wasn’t hard of hearing: the brave soul stood up. He was not however called forward but spoke to the judge from the back row of the public gallery, behind me. The judge did at least raise his voice sufficiently that he became audible and I was impressed with how the judge spoke to the man with courtesy and respect. The man’s position may have had some advantages in that the man’s ?wife whispered advice to him from her seat and another more experienced litigant also made some (uninvited) whispered suggestions of what to say back to the judge.

On balance though, I’m firmly of the view that this custom of litigants in person giving submissions from the public gallery is a bad thing. It is a New Zealand High Court custom (an extends to some of our other courts) and I have argued as wrong in law and principle (2016 NZLJ 148). It equates litigants in person with people like me, the curious public. Instead of being up at the tables where they might have some comfort, have a chance to hear what was being said and to feel involved, they are relegated to the public gallery. The position has come about from a misconception that the only people entitled to be at counsel’s tables are those admitted to the Bar and that a litigant in person requires leave to sit at the tables. This misses the point that litigants in person have always had a right of audience with the court and that right continues to this day. That is why it is wrong in law. More importantly, leaving litigants in the public gallery also poses real problems both for substantive justice (hearing from both sides) and procedural justice (making people feel like the process has been fair and they have been heard). It poses real risks to the legitimacy of the court to have litigants in person treated this way. So while I enjoyed my outing I came away with significant concerns about what is going on the bankruptcy list: 10/10 for attractive architecture, 3/10 for access to justice.