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Brief Counsel

Law Commission on the commercial list and judicial specialisation

20 April 2012

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The Law Commission is reviewing the commercial list and judicial specialisation as part of its review of the New Zealand court system.  Submissions in response to the Commission’s discussion paper are due on 27 April. 

This Brief Counsel is one of a series Chapman Tripp is writing on various aspects of the review.

The commercial list

This was established in Auckland in 1987 to expedite trials by reducing pre-trial interlocutory processes and was effective in achieving that objective.  But the number of cases on the list has declined steadily in recent years as general case management has become more intensive.  In 1987 there were 143 cases filed and in 2010, just 16. 

There are seven commercial list judges in Auckland and two in Wellington, although Wellington does not yet have a commercial list. 

A range of commercial cases can be entered onto the commercial list, either at the time of filing or by a judge later.  A case may be filed in a commercial list registry, even if its proper registry would be elsewhere. 

Once a case is ready for trial it is placed back into the general list to be heard by any High Court judge.  Parties can agree not to appeal a decision, there are no jury trials and there are restrictions on appeals from interlocutory decisions. 

Judicial specialisation

The Commission notes that few lawyers are expected to cover the whole range of legal work, yet judges are required to do so and that there is a developing view that the increasing complexity of civil litigation means specialisation is warranted. 

There are suggestions that parties are forgoing litigation in favour of arbitration because they are wary about relying on generalist judges.  Specialisation could also increase efficiency, as judges who know an area of law could hear a case and deliver judgment faster.

However, the Commission recognises that the generalist nature of the High Court is one of its greatest strengths.  Specialisation could lead to the Court losing flexibility and becoming fragmented.  Moreover, there are questions about how practical specialisation is in a bench of the High Court’s size.  A small number of judges would dominate the law, which could constrain development and lead to insularity. 

And the judiciary is divided on the issue.

Proposals

The Law Commission has outlined five options for reform.

  • No change.  The status quo remains, including its defects, these being that: cases must retreat to the general list for hearing and that, as the list is only in Auckland, litigants have to travel.
  • Abolish the commercial list.  Many of the list’s advantages have been overtaken by developments in civil case management generally.
  • Extend the commercial list. Geographically to Wellington and Christchurch and operationally so that cases are carried all the way through to the hearing.  This would deal to the list’s current weaknesses, but involves specialisation.
  • Create a commercial court.  This would be expensive to establish and, if the court is situated only in Auckland, for non-Auckland parties to use.
  • Adopt a panel system.  The Commission thinks a suitable panel system could be developed.  Judges would have general jurisdiction and do general list and criminal work but they would also opt in or be allocated to one of several panels.  There would be a commercial panel with four judges in Auckland and two in Wellington.  
The Commission is seeking submissions on whether advancing a panel system, either by statute or administratively within the judiciary, is appropriate.  It prefers this to the other options, as it does not support complete abandonment of the commercial list and considers the costs of establishing a commercial court would be prohibitive.

Chapman Tripp litigation comment

The Commission’s predominant concern is one of efficiency.  It is not suggesting that there is an issue with the quality of judgments in the High Court.  There are two areas where efficiency could be improved: the pre-trial processes and the time for hearings and judgment writing.  Given the significant delay in bringing cases to trial, we would suggest this first area is the more pressing concern.

The expertise a specialist judge brings may help expedite hearings and delivery of judgments but it is not clear, in our view, what further efficiencies would flow from having specialist judges also conducting pre-trial processes.

Implementing panels may carry significant risks.  The current judiciary is resistant to the idea and, given the size of our High Court bench, the panels would need to be small – creating a risk that the bench will become fragmented and a few judges will dominate an area of law. 

Keeping judges on panels for a short time may ameliorate this risk, but might also reduce any efficiency gains.  The benefits of “generalist” judges, with a broad range of trial experience, may be lost, and it would be more difficult to ensure that judges had a broad range of experience before being appointed to the generalist appellate courts.

Improving efficiency is an admirable aim.  However, it is important to determine precisely what problem we are addressing and what changes are needed to achieve that aim.  Implementing a panel system to improve efficiency is a very significant change with very real risks, and possibly only marginal efficiency gains.  It may be that the best place to begin is refining and improving the High Court’s case management systems, including the commercial list, so that cases can be brought to trial quickly.

Our thanks to Emma Peart, Solicitor, for writing this Brief Counsel.

For further information or help preparing a submission, please contact the lawyers featured.

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