Who are the court users?

I wanted to pick up my argument from a couple of weeks ago about user-centred courts and share some data about who is using the New Zealand High Court. I’m currently up to my elbows in data, attempting to finish the overview report for our current project, Undue Delays in Civil High Court Cases: Fact or Fiction? (Shout out to the New Zealand Law Foundation for co-funding this research). At the NSW Law and Justice Foundation’s symposium last month, one of the presentations was on data insights from the NSW Local Court, which features data analysing “who is suing whom in the NSW Local Court”. That provided some interesting insights in NSW so we decided to code our data to run the same analysis. The Ministry of Justice has declared it is “on a mission to deliver modern accessible people-centred justice services” so knowing who your “people” are is a necessary preliminary step. We are focusing on general proceedings[1] in the High Court. This is what the analysis said about who is suing who in High Court general proceedings:

Who are the Plaintiffs?

Who are the Respondents?

 

Individual Local/Central Government Company Other Bodies
Individual

 

15.6% 11.1% 9.2% 7.8%
Local/Central Government 1.0% 2.9% 0.2%
Company

 

13.5% 2.7% 21.1% 2.3%
Other Bodies[2]

 

6.4% 1.0% 3.1% 2.0%

What is interesting about this data is that “users” (if you are referring to parties) are not a homogenous group. I suspect when governments are touting “people centred” justice they are thinking about cases involving individuals. But cases that involve two individuals duking it out account for only 15.6 per cent of cases in High Court general proceedings. A “people centric” focus is not quite so clear cut when most of the litigation is non-human vs non-human (companies, trusts, government bodies, charities and religious organisations). There are obviously humans behind these organisations but who exactly are the people in the organisations who are the subjects of this people-centric mission?

The other interesting finding from our analysis of general proceedings in the High Court is around representation. We physically reviewed a random sample of general proceeding files and noted any time where a document was filed by a litigant in person (LiP). Only one per cent of cases had an LiP on both sides of the case and only five per cent of cases had an LiP as one of the parties. So in a whopping 94 per cent of cases, both or all parties (there were often multiple parties) were represented. Before I get shouted down, I know this will not be true for all courts and all classes of proceedings. For example, the High Court bankruptcy and liquidation list will feature much higher rates of LiPs, as will Family Court proceedings.

The finding about representation in High Court general proceedings does give rise to an interesting point about what a “user-centric” approach might look like when the vast majority of parties are represented. The main users of the High Court general proceeding list are lawyers (although I’m struggling to imagine the Ministry of Justice promoting its “lawyer-centric” approach in the next edition of Justice Matters). The lawyers are using the court as an agent for their client, acting in the client’s shoes, but they are the people who are having most of the contact with the court. Theoretically the client has free choice in its lawyer (her or his lawyer if it is a natural person) and the lawyer is acting on the client’s instructions. So, what is good for the lawyer is good for the client? Does the people centred vision just apply to the lawyer and client as if they were one in the same? Well not necessarily, and this is where it all gets very murky. Lawyer and client interests can and do diverge.

An example would be a client, let’s call her Sue, is represented by Janet. Sue wants a proceeding brought on quickly. Derek is acting for the opposing party and Derek wants an adjournment because he has had another trial overrun and is behind on his preparation. Janet knows Sue wants the matter to be brought on quickly but Janet has lots of cases against Derek. She may well need an indulgence from him in another matter and so agrees to the adjournment.

Lawyers and clients cannot therefore be merged into a single person – they can have different interests. People-centric sounds good, but as a guiding mission for organising courts, I’m not at all convinced it takes us very far.

[1] General proceedings are all civil case which are not a bankruptcy or liquidation proceeding, an application for judicial review, an appeal from a lower court, or a proceeding begun by way of an originating application.

[2] The category ‘other bodies’ includes: Body Corporates, Professionals, Liquidators, Receivers, Partnerships, Trusts (including Iwi), Charity and Religious organisations, Executors and Guardians.