Litigants are not “customers”

The New Zealand Ministry of Justice recently released a glossy brochure showcasing Ministry initiatives: “Justice: our people, our communities”. One thing that struck me was how ad hoc many of these initiatives were – localised, number 8 wire solutions to major systemic problems. Good on those who are coming up with these solutions but let us not let the full page photos distract us from the fact that much more centralised work needs to be done to solve some significant issues.

What really pulled me up short though was the “Message from our chief executive” (Andrew Bridgman) who uses, not once but twice, the term “customers”:

It’s great to see judges and staff coming together around a common goal of speeding things up for our customers, by improving processes and working in different ways.

And

Some of these initiatives are a product of innovative thinking to address a local issue, while others are happening across the country. Both are focused on achieving better outcomes for our customers …

Customers? Seriously? Is a criminal defendant a purchaser of goods and services from the courts? Someone being evicted from their rental? Someone being adjudged bankrupt? Someone suing someone else? What seems to be confusing the Ministry is the difference between a user-focus – as in designing a system that puts court-user needs front and centre – and market ideology.

Then Chief High Court Justice Winkelmann (now of the Court of Appeal) took issue with this language in her 2014 Ethel Benjamin address “Access to Justice – Who Needs Lawyers?”. Critiquing the imposition of high court fees, creating “user-pays” justice, Winkelmann J says:

There are indications that far from being viewed as a democratic institution, civil courts are, for policy purposes at least, regarded as a luxury service for which users should pay. There is a new language that is used in connection with courts; people who come before the courts are called customers, judges and lawyers are referred to as stakeholders, District Court centres are referred to as franchises. We are now to understand that we are part of a market for justice services and our product is being “marketised”.

Unfortunately, here in the glossy Ministry promo, is evidence that this trend in “marketising justice” is continuing.

Justice Winkelmann took issue with it and I will do so again here because the idea of justice “customers” is dangerous and insidious. One of the most striking stories of where it can lead was told to me by a participant in my study on litigants in person:

A bailiff was warned not to enforce an order against a vulnerable, one-shot litigant, because the litigant’s right to a stay had not yet expired. The party seeking to enforce the order was a large, well-resourced, repeat litigant. The bailiff enforced the order regardless, without waiting for the right to stay to expire, on the basis that the repeat litigant enforcing the order “had a right to customer service”.

That really happened in a New Zealand court. A bailiff enforced an order even when a litigant might be able to stop that order because the bailiff was worried about not providing “customer service”. That is where market-ideology can get you when you apply it to a court – undermining people’s legal rights.

Yes, courts need to be user-focused. Yes, courts need to find ways to improve. Yes, there is much work to be done. However, the courts’ function goes beyond mere dispute resolution to enforce private rights. They also create rules and promote compliance with them. They scrutinise and limit state power. They provide the ordering for our capitalist economy. Litigants are not, therefore, mere consumers of a service. They are not customers, purchasing something solely for their private benefit. The courts are a public good and language from the Ministry that suggests otherwise is something we should all be worried about.