Newsletter March 2007
Immunity from claims: guidance note by Bruce Gray QC
Claimants will face formidable hurdles U
ntil the decision of the Supreme Court in Chamberlains v Lai [2006] NZSC 70 barristers enjoyed a limited common law immunity from claims by their clients for professional negligence. Immunity attached to court representation and work intimately connected with it. The Chamberlains v Lai decision removed this immunity. This note is to provide some guidance to members of the Association about the extent to which they may be exposed to new claims as a result of the decision that immunity should be abolished.
The starting point is that barristers already owe a number of duties which were enforceable notwithstanding the immunity, or its removal. First, barristers owe an overriding duty to the court to comply with rules of conduct relating to the exercise of rights of audience. These obligations include a duty to act with independence, not to mislead the court and to act only in the best interests of the client. Second, barristers are obliged to comply with the Rules of Professional Conduct for Barristers and Solicitors.
These rules have a broad scope. They provide for relations between practitioners and clients, for relations between practitioners, for obligations concerning court proceedings in practice, and for the nature of practice as barristers. What is new is that barristers might be liable in damages for any failure to act with the degree of skill and competence reasonably to be expected in the circumstances of the case and having regard to the seniority of the practitioner. ● Cont. on p.2
In this issue . . . Claims guidance 1-5 Conference plans 2 Discovery implications 6, 7 Christchurch meeting 8, 9 Trans-Tasman links 9, 10 Cost Rules 11 Bar Chat 11 Witness briefs 12, 13 Council Minutes
13-15
“Stars of the Bar”
16, 17
Ph: (09) 303-4515
At the social function for members held in conjunction with the Bar Association’s Council meeting in Christchurch, from left, Jonathan Eaton, Gail Toth, Tony Hughes-Johnson QC, Dale Lester. More photographs, pages 8 and 9.
Fax: (09) 303-4516
P.O. Box 631 Auckland 1140
Email: nzbar@nzbar.org.nz
NZBA Conference — Christchurch 17 – 19 August 2007
Please mark your diaries now for the Association’s next conference which will be held this year in Christchurch. Close enough to the mountains for the skiers! But hopefully well positioned to enable younger members especially to take advantage of cheap airfares and attend this year’s conference. It promises to be an excellent conference with, as a key note speaker, Professor James Raymond PhD, consultant on legal writing and reasoning. The Professor is based in New York and runs courses for judges in Australia and New Zealand, and elsewhere, on judgment writing. The art of written persuasion is an important skill that all barristers must have and the Council could not have a better keynote speaker in Professor Raymond to speak on this. The rest of the programme is being worked up, but it promises to be an exciting one.
Continued from page 1
Claimants will face formidable hurdles
There are a number of separate aspects of the relationship with a client which might give rise to a claim.
Standard of care Liability in damages will arise where there is a failure to perform with the degree of skill and competence reasonably to be required. However, the level of skill and competence is to be assessed in the light of the circumstances of a particular case. The nature of the instructions, the extent of disclosure by the client of relevant facts and the relative seniority of the practitioners are all factors which will affect the level of skill and competence reasonably to be expected. The circumstances in which advice is given will also be relevant. Courts in the United Kingdom have accepted that advice at the door of the court in circumstances calling for a quick decision might reasonably be less expansive.
by noting: The scope of their instructions; the facts provided to them in respect of which their advice is sought; and the advice given.
Accepting instructions Barristers who are affected by a personal factor which may, reasonably, prejudice the administration of justice in
an individual case should not act even if they have formed the view that they are not professionally embarrassed.
ADR There is emerging authority in the United Kingdom, based on particular Rules of Court, that lawyers owe a duty to their clients to advise them to consider the suitability of ADR. In ● Cont. on p.3
COUNCIL MEETINGS Proposed dates and locations for 2007 Council meetings are as follows: March 15 May 10 July19 August 17-19 September 27 November 22
Palmerston North Wellington Auckland Christchurch annual conference Hamilton Auckland
Practitioners will protect themselves N.Z. Bar Association Newsletter. March 2007. Page 2
Continued from page 2
Claimants will face formidable hurdles
the United Kingdom, advice leading to an opportunity to participate in ADR being turned down out of hand might be negligent.
Duty to an opposing party The Rules of Professional Conduct for Barristers and Solicitors provide for duties for relations between practitioners. Difficult issues can arise where the opponent is a litigant in person. The primary responsibility for the task of protecting litigants in person rests with the court, not with the lawyer acting for the other party. Notwithstanding a well established practice of barristers to assist litigants in person on the other side so far as is consistent with their duties to their own client, it does not follow that a failure to give that assistance was improper, unreasonable, or negligent.
and if detrimental to the interests of the client, to be remedied by retrial or, occasionally, acquittal. The rare cases of acquittal on grounds of conduct by counsel may expose barristers to a claim – especially where the client has been in custody pending the hearing of the appeal.
Conduct of the hearing The range of areas intimately connected with a hearing in which views may differ about the adequacy of skill and competence is large. From the beginning there are issues of pleading and identification of relevant arguments. Next, there is assembly of evidence,
Criminal cases Courts in the United Kingdom and Australia have considered whether there should be a different rule for barristers involved in criminal cases from those involved in civil cases. In New Zealand there is no distinction. However, it is not uncommon for conduct by defence counsel to be a ground of appeal so that there is an opportunity in criminal cases for conduct to be considered,
In civil cases, case management is becoming significant. The court has wide powers to prevent introduction of evidence or arguments. There is scope for claims based on conduct at all stages of the proceeding. However, the court increasingly is directing the conduct of litigation. It may be open to a barrister to argue that steps taken in a proceeding are not the result of decisions made by the barrister, but of directions given by the court. An illustration of this is Moy v Pettman Smith [2005] 1 WLR 581. ● Cont. on p.4
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Conflict of interest and confidentiality Experience with other professions and with solicitors suggests that claims often arise as a result of alleged conflict of interest or breach of duties of confidence. These claims are not likely to have been the subject of the former immunity. However, an environment in which barristers are more amenable to suit might result in claims being made when previously they would not.
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N.Z. Bar Association Newsletter. March 2007. Page 3
Continued from page 3
Claimants will face formidable hurdles
As has been said earlier, the standard of care expected will be assessed having regard to quality of instructions, duty to the court, pressures of the hearing and the seniority of the practitioner.
Causation and remoteness One of the main impediments to a successful claim against a barrister for alleged negligence in the conduct of a court proceeding is the difficulty of demonstrating that the conduct complained about has caused loss. It will be difficult for a claimant to prove that, but for the alleged negligence, the outcome of litigation would have been different.
guidelines. Some are more helpful than others, but they are never more than this;
The Moy v Pettman Smith case referred to earlier illustrates some of the difficulties a plaintiff will face in demonstrating that steps taken by counsel were negligent, and caused loss. Advice had to be given at the courtroom door as a result of new information becoming available. In finding that counsel had not been negligent, the House of Lords observed it was undesirable that potential liability in negligence should compel advocates to adopt a defensive attitude or to abdicate responsibility for their decisions. Advocates were entitled to concentrate on giving clear and readily understood advice about the course of action they recommended. ● Cont. on p.5
◆ In most cases, how far the responsibility of the defendant ought fairly to extend evokes an immediate intuitive response. This is informed common sense by another name; and ◆ When the outcome of the second enquiry is not obvious it is of crucial importance to identify the purpose of the relevant cause of action and the nature and scope of the defendant’s obligation in the particular circumstance.
Kuwait Airways Corporation v Iraq Airways Corporation [2002] UKHL 19 considered issues of causation and liability in the context of the tort of conversion. The following observations were made: ◆ The extent of a defendant’s liability calls for a twofold enquiry into whether the wrongful conduct causally contributed to the loss, and, if it did, the extent of the loss for which the defendant ought to be held liable; ◆ The first of these enquiries widely undertaken as a simple “but for” test is predominantly a factual enquiry; ◆ The second enquiry involves a value judgement. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. The second enquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable; ◆ Familiar principles or techniques such as remoteness, intervening cause, mitigation and forseeability assist in promoting some consistency of general approach. These are
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N.Z. Bar Association Newsletter. March 2007. Page 4
Continued from page 4
Claimants will face formidable hurdles
Apportionment of responsibility between joint tortfeasors
another party and the availability of an appeal.
A second complex issue is identifying which of the lawyers instructed by a client may have caused loss. While a barrister may owe a duty directly to the client, a barrister remains the agent of an instructing solicitor so that it remains possible for a claim for the whole damage to be brought against the solicitor only. Issues of apportionment of responsibility, and so contribution, may arise.
It is unlikely that the decision in Chamberlains v Lai will lead to a great number of claims being brought, or succeeding. Issues of duty, causation of loss, remoteness of loss and apportionment will be complex and will pose formidable hurdles for a claimant.
In Royal Brompton Hospital NHS Trust v Hammond and ors [2002] UKHL 14 the House of Lords considered the circumstances in which parties are joint tortfeasors so that contribution between them was appropriate.The starting point is that tortfeasors are joint when they cause the same damage. Lord Steyn said the natural and ordinary meaning of “the same damage” is controlling. No gloss, extensive or restrictive, is warranted. The operative word is “damage” not “damages”. In the case of litigation, frequently what will have been lost is an opportunity. This was considered in Hatswell v Goldbergs [2002] Lloyds Rep PN 359 (CA). The court held that the process of assessing loss of opportunity was a two-stage one. First the court must be satisfied the claimant has lost something of value – an action which is bound to fail or which has no substantial prospect of success and is merely speculative is not something of value. Second, if the claim passes that test, the court has to evaluate, in percentage terms, what is the value which has been lost. Factors which may operate to discount the extent to which counsel may have caused an adverse outcome in litigation include witness impression, legal complexity, impecuniosity of
Conclusion
Barristers will help themselves if they maintain an accurate record first of
the scope of instructions so that there is clarity of the range of services which they have been retained to provide, and second, of formal advice given. For other attendances the extent to which a record is helpful depends on the quality of the note. Experience suggests that the issue is not so much whether a practitioner should keep file notes, but whether any file notes which are kept are comprehensive and accurate. An incomplete or inaccurate file note often is unhelpful and can be worse than no file note at all. ■
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EVIDENCE, ADVOCACY, ETHICS AND PRACTICE MANAGEMENT The Bar Association of Queensland is holding its annual conference at the Sheraton Mirage, Gold Coast 16-18 March. Speakers will include a number of judges and magistrates as well as senior representatives of the Bar. The major themes are evidence, advocacy, ethics, practice management and ADR. Sessions will include key note addresses, discussion sessions and practical workshops designed to assist practitioners with continuing professional development. Details can be obtained from the Association Phone 07 32385100 or email shaynegoodwin@qldbar.asn.au.
N.Z. Bar Association Newsletter. March 2007. Page 5
Canadian case may have discovery implications A
Supreme Court of Canada case may have significant implications for discovery in New Zealand and other Commonwealth countries and is predicted to result in increased challenges to privilege claims for documents in North America. In Blank v Canada (Minister of Justice) (2006) SSC 39 (September 8, 2006) Sheldon Blank and Gateway Industries were charged with 13 offences against the Fisheries Act and the Pulp and Paper Effluent Regulations. The charges involved both reporting and polluting offences, all of which had been quashed by 2001. The Crown laid indictments in 2002, but proceedings were stayed prior to trial. Mr Blank and Gateway then sued the Government alleging fraud, conspiracy, perjury and abuse of federal prosecutorial powers. Blank and Gateway in the civil action sought documents from the government, some of which were withheld on the basis of solicitor-client privilege. Mr Blank complained to the Information Commissioner, who directed the release of some further documents. However, the overwhelming majority were found to be exempt from disclosure. Mr Blank then applied for review to the Federal
Court Trial Division, which held that documents in respect of which only litigation privilege was claimed should be released because the litigation had ended. The matter was then appealed to the Supreme Court of Canada, which dismissed the appeal and in a majority judgment confirmed that litigation privilege ended with the litigation giving rise to the privilege. Justice Fish said that litigation privilege and solicitor-client privilege were driven by different policy considerations and generated different legal consequences. Litigation privilege was not directed at, still less restricted to, communications between solicitor and client. It also contemplated communications between a solicitor and third parties. The purpose of litigation privilege was to create a “zone of privacy” in relation to pending or apprehended litigation. The common law privilege came to an end, except in the case of closely related proceedings, upon the termination of the litigation giving rise to the privilege. Unlike solicitor-client privilege, it was neither absolute in scope nor permanent in duration. ● Cont. on p.7
NZ Bar Association Official Newsletter EDITOR Catriona MacLennan Telephone: 09 378 0964 Email: catmac@clear.net.nz LAYOUT / DESIGN Graham Wear Telephone: 09 415 9968 Email: wears@clear.net.nz John Slane Telephone: 09 524 5643 Email: j.slane@xtra.co.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Telephone: 09 377 8959 Email: miriam@barrists.co.nz Marian Hinde Telephone: Fax:
09 366 7757 09 303 4566
Jodi Libbey Telephone: 09 309 4690 Email: j.libbey@xtra.co.nz Stephen Kós Telephone: 04 472 9026 Email: jsk@40johnston.co.nz Monique Pearson Telephone: 09 303 4515 Email: nzbar@nzbar.org.nz
NZ Bar Association 2006–2007 Council — Contact details President James Farmer QC
Ph: 09 358 7090 Fx: 09 358 7091
P O Box 1800
Auckland
Vice-President Christopher Gudsell ctgudsell@xtra.co.nz Treasurer Trevor Shiels
Miriam Dean QC miriam@barrists.co.nz
Ph: 09 377 8959 Fx: 09 377 8960 P O Box 4111 Auckland
Ken Johnston k-johnston@clear.net.nz
Ph: 04 471 2727 Fx: 04 499 4620 P O Box 5058 Wellington
Ph: 07 839 3290 Fx: 07 834 0587 P O Box 19085 Hamilton
Jonathan Eaton j.eaton@xtra.co.nz
Ph: 03 372 3466 Fx: 03 365 2592 P O Box 13-868 Christchurch
Stephen Mills
Ph: 09 307 9820 Fx: 09 307 1572 P O Box 4338 Auckland
Ph: 03 477 4030 Fx: 03 477 7320 P O Box 1219 Dunedin
Bruce Gray QC
Ph: 09 309 1769
Terry Sissons terry.sissons@xtra.co.nz
Ph: 04 471 1380 Fx: 04 499 8795 P O Box 23063 Wellington
Colin Carruthers QC crc@crcarruthers.co.nz
Ph: 04 471 4275 Fx: 04 471 1195 P O Box 305 Wellington
Stuart Grieve QC stuart@grieve.co.nz
Ph: 09 358 1716 Fx: 09 358 1718 P O Box 4555 Auckland
Adina Thorn adinat@xtra.co.nz
Ph: 09 307 9953 Fx: 09 307 9954 P O Box 4420 Auckland
Kate Davenport kate.davenport@xtra.co.nz
Ph: 09 302 3543 Fx: 09 309 1935 P O Box 141 Shortland St Auckland
Tony Hughes-Johnson QC achj@xtra.co.nz
Ph: 03 365 2158 Fx: 03 365 7273 P O Box 286 Christchurch
Matthew Ward-Johnson
Ph: 07 579 0408
jamesfarmer@queenscounsel.co.nz
Continued from page 1
trevor.shiels@barristerschambers.co.nz
bdgray@shortlandchambers.co.nz Fx: 09 366 1599
PO Box 4338 Auckland
stephen.mills@shortlandchambers.co.nz
Big changes in District Court Rules
ward-johnson@tgachambers.co.nz Fx: 07 579 0404
P O Box 13561 Tauranga
N.Z. Bar Association Newsletter. March 2007. Page 6
Continued from page 6
Canadian case may have implications
T
he exception was when related litigation remained pending or might reasonably be apprehended. That enlarged definition of litigation included separate proceedings involving the same or related parties and arising from the same or a related cause of action or juridical source. Proceedings raising issues common to the initial action and sharing its essential purpose would also qualify. Justice Fish went on to state that litigation privilege would not, in any event, protect from disclosure evidence of the claimant party’s abuse of process or similar blameworthy conduct. It was not a “black hole from which evidence of one’s own misconduct can never be exposed to the light of day.” Even where materials sought would otherwise be subject to litigation privilege, the party seeking disclosure could be granted access to them on a prima facie showing of actionable misconduct by the other party in relation to the proceedings with respect to which litigation privilege was claimed. Whether privilege was claimed in the originating or in related litigation, the court could review the materials to ascertain whether their disclosure should be ordered on this ground. Justice Fish said that litigation privilege should attach to documents created for the dominant purpose of litigation. The dominant purpose test was more compatible with the contemporary trend favouring increased disclosure. Although it provided narrower protection than would a substantial purpose test, the dominant purpose standard was consistent with the notion that litigation privilege should be viewed as a limited exception to the principle of full disclosure, and not as “an equal partner of the broadly interpreted solicitorclient privilege.” In an article discussing the judgment published in Business with Canada, Michael McCachen of Blakes Calgary said that the lesson to be taken from the
case was that documents or information collected under the protection of litigation privilege might be subject to attack in at least two ways – ● Subsequent proceedings might be brought and, if they were different enough from the original proceedings, or involved different parties, the lawyer’s file material from the prior litigation might be discoverable; and ● Allegations of abuse of process, actionable misconduct or other misconduct could be expected in an increasing number of cases, as attempts were made to pierce the armour around the solicitor’s brief. Mr McCachen predicted that challenges to privilege claims for doc-
uments in litigation would increase. He criticised the judgment, stating that one could question why Mr Blank’s litigation – which was between the same parties and arose out of the same set of circumstances – did not itself fall within the exception discussed by the court. He said the end result could be an invitation to make allegations or abuse of process or misconduct by litigants in circumstances where the real objective was simply to try and obtain disclosure from inside the opposing lawyer’s office. (See www.blakes.com/english/ publications/businesswithcanada/bwc/ html/article.as...) The decision is yet to be considered in New Zealand, Australia or the United Kingdom, but has precedent value and is likely to have an effect on discovery obligations. ■
The Queensland Law Society has asked that the following notice (sent to its members) be drawn also to the attention of members of the New Zealand Bar Association
2007 QLS EUROPEAN PERSPECTIVES IN LAW CONFERENCE PARIS, FRANCE
“EUROPEAN PERSPECTIVES ON LAW” The European Perspectives on Law Conference 2007 will be held over three exciting days (17 – 19 October) in Paris. QLS has extended eligibility for “member rates” to this event to all members of the New Zealand Bar Association. Registrations are strictly limited to the first 100 delegates. If you would like to receive a copy of the brochure and registration form in an electronic format, please email Monique Pearson on nzbar@nzbar.org.nz
N.Z. Bar Association Newsletter. March 2007. Page 7
Council meets Christchurch members At the social function after the February Council meeting in Christchurch. From left, Executive director Monique Pearson, Miriam Dean QC, Anne O’Brien
From left, Malcolm Wallace, Stephen Mills, Simon Shamy
From left, James Rapley, Dale Lester, Kevin Clay
N.Z. Bar Association Newsletter. March 2007. Page 8
Many advantages deriving from trans-Tasman bar linkages M
oves to develop closer ties between the New Zealand Bar Association and the Australian Bar Association are gathering pace. Australian Bar Association president Glenn Martin SC and vice-president Stephen Estcourt QC attended the New Zealand Bar Association’s Council meeting in December, and were also present at the Auckland function to mark the opening of the Association’s office and the appointment of its first executive director. There are also plans for possible collaboration on a joint ABA/NZBA conference in Australia in 2008. Mr Martin said in an interview in Auckland that co-operation between the two associations was important for a number of reasons. Both Australia and New Zealand shared the same system of law, which was derived from the common origin of English common law. The two countries had in practice followed the same traditions and, at present, were focusing on similar problems. The role played by competition authorities in both nations was of significance, and the attitude of the New Zealand Government in respect of some issues was the same as that of some of the Australian state governments.
QC. Mr Estcourt said it was curious that the two associations had not begun co-operating sooner. Mr Martin identified advocacy training as a major area for potential cooperation between the New Zealand and Australian bars. He said the Australian association was likely to invite some teachers from New Zealand to travel to Australia to observe the courses run there. He hoped that the reverse would also occur, as it was always very important to have new thoughts being incorporated into teaching. In relation to cooperation concerning conferences, Mr Estcourt said that an invitation had already been extended to New Zealand speakers to address the Australian association’s conference in Chicago in June 2007. Colin Carruthers QC would present a paper at that conference. New Zealand representatives would attend the Queensland bar conference in March. Mr Martin said he anticipated that some Australian
association members would attend this year’s Christchurch conference. He said he had raised with the New Zealand association the possibility of a joint NZBA/ Queensland Bar Association conference on the Gold Coast in March 2008.
The intervention rule Mr Martin said the intervention rule had been abolished in most Australian states in the late 1980s and early 1990s. That had happened as a result of competition authorities placing pressure on the bars and threatening proceedings. Mr Estcourt said he anticipated that the Western Australian rule would be abolished. Mr Martin said there were two forms of direct access in Australia. A small group of barristers did direct access opinion work, usually on revenue matters and with the work normally being briefed by large accounting firms. Mr Martin said he had no problem ● Cont. on p.10
“We also benefit from talking to each other about teaching advocacy, and about approaching changes to court procedures. The governments of our countries talk to each other about these things.” Mr Martin said initial moves towards collaboration by the two associations had begun eight years ago. However, the idea had gained momentum in May 2006 when he met Council member Jonathan Eaton at a conference and they held discussions. Those talks were followed by contact with New Zealand Bar Association president Jim Farmer
After the Council’s February meeting in Christchurch. From left, Kevin Clay, Kate Davenport, Graham Howard
N.Z. Bar Association Newsletter. March 2007. Page 9
Continued from page 10
Advantages from trans-Tasman linkages
with the way that category of work operated in practice, as large accounting firms were just as capable of requesting advice as were large firms of solicitors. However, the area in which both Mr Martin and Mr Estcourt said there was the greatest concern was in public direct access in litigation matters, and particularly criminal cases. Mr Martin said there had been instances of judges stopping trials because they had formed the view that a barrister briefed by a direct access client was not able to do the work. He said barristers had attempted to do four to six week trials on their own without any support and had found this could not be done. He said that, when a barrister’s client was a solicitor, the client was a sophisticated consumer. However, lay clients had no knowledge of legal practice and did not know whether fees were appropriate and whether the barrister had the skills required for the case. Mr Martin said the courts were unhappy about direct access. It meant more work for them, as some barristers were unable to complete the paper work required. The Supreme Court of Queensland has issued a practice note in an attempt to regulate direct access. This requires barristers to complete a document explaining direct access so that clients are aware that it could have drawbacks. Mr Estcourt said there were considerable problems with direct access in personal injury litigation, which required the filing of large numbers of documents. Mr Martin said it was his view that in almost all cases in which barristers operated using direct access, the barristers were those who had not been successful in practising at the independent bar as they were not briefed by solicitors.
Training In relation to training of barristers,
Mr Martin said that the three eastern states each conducted a full-time course lasting six to eight weeks. South and Western Australian ran part-time courses. He said that his preference would be for a full-time, six month-long course but the association did not have the resources to run such a course and there would be insufficient numbers to justify it. Continuing professional development for practitioners had also been made compulsory in the three eastern states, with a requirement of 10 hours’ CPD a year. There was a requirement for a minimum number of points in ethics, practice management and advocacy. He
Direct access adds to court’s workload expected that the required number of points would be increased over time. Mr Martin said there had initially been some resistance to compulsory CPD, particularly from some very senior people who did not believe they should be required to participate. However, the only person who had been excused to date was a practitioner who was 92 and had practised for more than 50 years.
would effectively have a “travelling” practising certificate enabling them to practise in any state.
Harmonisation Both Mr Martin and Mr Estcourt predicted that Australian and New Zealand corporate legislation would be more closely harmonised in future. Agreement had already been reached on protocols for trans-Tasman enforcement of judgments. Securities laws were likely to become more closely aligned, and there had also been a suggestion of establishing a trans-Tasman judicial commission with a view to harmonising procedure.
Senior Counsel Mr Estcourt noted that there were state protocols for the appointment of Senior Counsel. He said the issue was what the best process was — whether the Chief Justice should be involved or whether the bar itself should manage the process, with provision for the Chief Justice to have a power of veto. Mr Martin said he was of the view that chief justices wished to disengage from the process so they were not subject to judicial review or actions seeking to investigate their decisions.
Governance
In all but two states, the government now had no involvement in the process, whereas 20 years ago it was effectively the Attorney-General who had the say.
Every state in Australia except Tasmania and Western Australia has passed a new model act relating to governance of the profession. Mr Martin said the main changes in the legislation related to breaking down barriers between the states so that it was easier for practitioners to practise in other jurisdictions. Once the model law had been passed by all the states, lawyers
Mr Estcourt said the issue of whether Senior Counsel should be able to be appointed from firms was a thorny one. The only state which permitted this was Tasmania and the innovation had not been received particularly well, he said. Such appointees were not required to practise as if they were barristers, and it was undignified for Senior Counsel to be doing minor matters in court. ■
N.Z. Bar Association Newsletter. March 2007. Page 10
Cost rules amendments proposed T
he NZBA recently invited members to comment on proposals to amend rules relating to costs in both the Court of Appeal and the High Court. The consultation document Costs in the Court of Appeal notes that currently costs orders are made pursuant to r53 of the Court of Appeal (Civil) Rules 2005, with the general approach being that “costs follow the event.” A standard rate is applied, including a contribution towards the costs of preparation. However, the paper states that there are concerns that such an approach does not adequately reflect the relative complexity involved in preparation and argument. The committee accordingly wishes to make the amount of costs more proportionate to the nature of the dispute and the complexity of the proceedings, while retaining the predictability of the current costs regime. The document possible options.
suggests
three
The first is retention of the current system, which is said to have the advantages of the certainty and simplicity associated with the standard daily rate system. The second option identified is adoption of the Supreme Court approach. The Supreme Court has affirmed the general rule that the successful party is entitled to costs and that a reasonable contribution, rather than a full indemnity, is “just.” Its approach is based on a flat daily hearing rate, with a specific amount for preparation time for a one-day hearing and for second counsel. However, the Supreme Court differs from the Court of Appeal in separating out the various steps in the litigation process. The third option suggested is a system adjusted for complexity, but with a scale as in the High Court. The second paper, Specific changes to the recovery of costs in the High Court
Rules, proposes changing the way preparation costs are recovered and removing the link between preparation costs and hearing time for appeals, reviews of decisions of associate judges, interlocutory applications and summary proceedings. The document suggests that clarification of the principles relating to recovery of expert witnesses’ expenses is required. In particular, the committee sought comment on whether it is appropriate for judges to determine the reasonableness of an expert witness’ expenses, and whether recovery of such expenses should be partial or full. There has been debate in the High Court recently as to whether experts should recover all of their costs, or only two-thirds as is the case for lawyers. The committee proposes a new rule that the court determine an expert witness’ reasonable expenses based on the necessity of the expert
witness to the proceedings and the reasonableness of the expert’s fee, thereby retaining the court’s current discretion. It suggests that the standard amount to be recovered should be two-thirds of the reasonable amount determined by the court, as opposed to two-thirds of the actual amount charged by the expert. The paper states that the committee can see no practical reason for differentiating between the rates of recovery for lawyers and for experts. The documents can be downloaded at: www.courtsofnz.govt.nz/about/system/ rules_committee/consultation.html ■
Next Newsletter publication date: June 2007
BAR CHAT … The Bar Association welcomes the following new members to the independent bar and/or Association: Anne O’Brien Brian Carter David Connor Dean Blair Felicity Reid Gail Toth Gina Jansen Glenn Satherley Graeme Little Jennifer Anderson Jennifer Coates Karen Harding Lauren Lindsay Malcolm Wallace Matthew Goodwin Michael Cole Michael Lenihan Sandra Ward
Christchurch Auckland Auckland Tauranga Auckland Christchurch Hamilton Auckland Auckland Dunedin Auckland Auckland Auckland Christchurch Tauranga Auckland Auckland Hamilton
N.Z. Bar Association Newsletter. March 2007. Page 11
JODI LIBBEY argues that . . .
Witness briefs should be reserved for expert or uncontroversial evidence H
aving trained as a litigator in Canada, I distinctly remember my first encounter with witness briefs in the course of my first case in New Zealand as a junior barrister. We were reviewing briefs with various witnesses, and a witness queried whether he would read his brief when giving evidence in court. I thought to myself “certainly not,” but then nearly fell off my chair when senior counsel replied that the brief would be read in full at the start of their evidence. I couldn’t believe it. What happened to witnesses telling their story in their own words?
as parties can assess the strengths and weaknesses of their cases when they have the factual evidence before them;
I know my reaction was in part because there are no witness briefs in
◆ The improvement of the process of cross-examination; and
ʻLargely antithetical to the finding of facts ...ʼ
◆ The concentration of both the parties and the trial judge on the real matters in controversy between the parties.
Canada. Lawyers conduct “examinations for discovery” in which counsel for one side can require the witness for another party to answer questions on oath, recorded by a stenographer. These answers can then be put to that witness in cross-examination, often on the basis of a prior inconsistent statement. New Zealand practice, by comparison, is similar to English practice, where witness statements are also used. There the Supreme Court Practice 38/2A/2 (relating to O 38 r 2A), written under the old rules, set out 10 objectives of the exchange of evidence in advance of trial. These included: ◆ The fair and expeditious disposal of proceedings and the saving of costs; ◆ The elimination of any element of “surprise” before or at the trial by requiring parties to “place their cards on the table”; ◆
◆ The avoidance of identification of the issues;
trial;
the
◆ Encouragement of the parties to make factual admissions; ◆ The reduction in the number of pre-trial applications, such as for further and better particulars of pleadings or for further discovery of documents or for interrogatories;
These
are
admittedly
laudatory
purposes, but do witness briefs achieve them? And at what cost? In theory at least, briefs focus parties on the issues at hand, and draw attention to the strengths and weaknesses of their respective cases. They usefully identify the relevant documents, and given that most civil cases are documentary, this is likely to promote settlement. However, if settlement does not occur (and there are of course a host of other reasons why it might not) I am frankly unconvinced that witness briefs have a part to play in the trial process. My primary concern is that witness briefs are largely antithetical to the finding of facts by the court. As I understand it, witness briefs (or witness statements) began as a practice whereby the statements of expert witnesses would be exchanged prior to trial. Initially witness statements were ● Cont. on p.13
Young Lawyers’ Writing Competition The IBA Communications Law Committee is holding a Young Lawyers’ Writing Competition in 2007. The competition is free to enter and is open to young lawyers up to and including the age of 35. To enter the competition young lawyers are asked to submit a paper on one of the following topics: ● The next generation networks ● Television without frontiers - the new challenges. The deadline for submission of papers is Sunday 15 April 2007. For further information contact Ms Kristi Reinson, Roschier Raidla, Tallinn, kristi.reinson@raidla.ee.
The promotion of a fair settlement N.Z. Bar Association Newsletter. March 2007. Page 12
NZ Bar Association Council minutes December meeting The Council met on Thursday, December 14, 2006 in Auckland. Matthew Ward-Johnson was coopted as a Council member. Moved by Jim Farmer QC and seconded by Chris Gudsell. The Solicitor-General, Dr David Collins QC, addressed the Council with a view to revisiting the practice of sitting judges of the Court of Appeal being seconded to the Supreme Court. The Council agreed that it was preferable that there be a sixth permanent member appointed as this was a better solution
than having a Court of Appeal Judge sit on the Supreme Court.
Farmer proposed an annual visit by Dr Collins to attend Council meetings.
Dr Collins reported that a working committee is to be formed to prepare the criteria in establishment of rules for the appointment of senior counsel and to work towards a viable option for the appointment of senior counsel. A working document will be produced setting out the above criteria.
2007 Conference topics, possible speakers and timetable were discussed at length.
Dr Collins indicated his support of CLO lawyers (crown counsel and others) taking up associate membership of the Association. He expressed a desire to forge a close relationship between CLO and the Association. Jim
A committee was formed to consider a joint NZ Bar Legal Research Foundation conference on the future of civil litigation: Miriam Dean QC, Bruce Gray QC and Stephen Mills. [David Bigio has subsequently been co-opted to the committee]. The sub-committee of Adina Thorn, Trevor Shiels and Chris Gudsell ● Cont. on p.14
Continued from page 12
Limited role for witness briefs?
regarded as inappropriate for factual witnesses, where credibility was in issue, as the trier of fact should have the fullest possible opportunity to assess the witness and their credibility. Somehow that shifted to a requirement that all witnesses submit a brief in advance of trial. My experience has been that witness briefs are largely drafted by lawyers working from the documents. The briefs are then sent to the witnesses to fill in the narrative gaps and to comment on the surrounding circumstances. It is my belief that this can be very suggestive and actually colour the witness’s recall of the events. In addition, the language of the witness is lost. We have all heard stories where witnesses have been unable to pronounce a word in their brief and have exclaimed, “I don’t know what that word means, my lawyer wrote that.” Furthermore, how can a judge assess the credibility and candour of a witness’ evidence when they begin by reading a lengthy brief in monotone voice? It is important that witnesses give their initial explanation of what happened in an unscripted manner so that the reliability and frankness of their recollection may
be observed.
already responded to the impugned passages.
In short, witness briefs are the extreme, and highly undesirable, form of “witness coaching.” As Bill Wilson QC (as he then was) commented at the last bar conference (reported in the last newsletter), it is “‘little short of bizarre’ that the common law had developed rules against the use of leading questions in cross-examination, yet nowadays counsel asked the ultimate leading question: ‘Read your written brief’.” The contrast between evidence in chief and evidence given in re-examination is a stark reminder of the difference. Witness briefs allow parties (counsel) to package the evidence, and the truth, in the form most conducive to their case. Another apposite comment from the Bar Conference from Alan Galbraith QC: witness briefs are “collusive statements prepared by lawyers, and as such were inconsistent with the entire basis of the legal system.” Witness briefs also tend to be replete with hearsay and irrelevant evidence. Objections to admissibility are rarely addressed pre-trial, and become too difficult to sustain and correct at trial, especially when other witnesses have
Do witness briefs lessen the costs to litigants and/ or the judicial system? If they result in early settlement – possibly yes. But otherwise that must be seriously doubted, having regard to the time involved in drafting, re-drafting, and over-drafting briefs in a given case. Finally, I echo Mr Galbraith’s concern that junior counsel, such as myself, are missing out on the opportunity to gain experience in direct examination. Perhaps senior counsel should be similarly concerned that after many years of neglect their direct examination skills may be falling into disuse! We need to review where the practice has taken us, and whether it is meeting the objectives which impelled its introduction. For my part, I believe that the earlier practice was correct – witness statements should be reserved for expert evidence or for evidence which is wholly uncontroversial.The use of lengthy statements, carefully drafted by lawyers, has subverted a longdeveloped practice which was, it seems to me, a better vehicle for the court to ascertain the truth ■.
N.Z. Bar Association Newsletter. March 2007. Page 13
Continued from page 13
NZ Bar Association Council minutes
was asked to establish the different categories at Crown Law and formulate a proposal for group membership. The Chief High Court Judge, Justice Randerson, attended the meeting as part of an intended arrangement for the purpose of discussing matters of mutual interest or concern to the High Court and to the bar. Topics discussed included (1) forthcoming revision of the High Court Rules (2) counsel talking to the media about cases in which they are involved (3) fixtures in the High Court (4) greater attendance of judges at bar conferences (5) establishing an annual bench and bar dinner. It is intended that Justice Randerson will attend Council meetings on a more regular basis. A New Zealand Law Society Constitution Committee was formed to get a better understanding of the new structure being proposed by NZLS, regulatory and membership issues including fees. Glenn Martin SC, president of the Australian Bar Association, and Stephen Estcourt QC, vice president, addressed Council with a view to fostering closer relationships. A very successful discussion which covered topical issues such as training/pupillage and mandatory CLE, professional code of conduct and the disciplinary process, the intervention rule and direct access. Glenn Martin is keen to have representatives from New Zealand attend a conference which is being held next year in the Gold Coast. He extended an invitation to Council members to participate in their off-shore conference in Chicago which runs from June 27 to 30, 2007. The conference topic is regulation and independence. Jim Farmer was invited to attend a dinner for newly appointed silks on January 29, 2007 in Canberra. Glenn Martin provided the following
documents for circulation to Council members: ◆ Queensland Legal Profession (Barristers) Rule 2004 ◆ Appointing Australian judges: A new model ◆ Application for and granting of silks in Australia. The meeting concluded at 4.45pm and was followed by a social event to mark the visit of Glenn Martin and Stephen Estcourt and also the appointment of the NZBA executive director.
February meeting The Council meeting was held on Thursday, February 8, 2007 in Christchurch. Apologies were received from Matthew Ward-Johnson and Chris Gudsell (who contributed to the interview rule discussion via telephone conference). It was agreed that Jim Farmer QC request a reply to his letter from the Chief Justice re the allegation of altering summing up notes. Stuart Grieve QC added that the Council needs to ensure a proper enquiry is undertaken. It was agreed that Stuart Grieve would contact Judge Russell Johnson (1) to inform him of the Council’s concern; (2) that it is the Council’s wish to explore this matter further to determine what exactly had taken place, and (3) schedule a meeting with the judge, Jim Farmer and Stuart Grieve. The Council discussed the positioning of the NZBA at length. The NZLS Constitution Committee comprising Kate Davenport, Ken Johnston, Stephen Mills, Bruce Gray QC and Chris Gudsell is to follow up, prepare and circulate a report before the next Council meeting which is to cover (1) rights to
vote (our aim is to participate so that we know what is going on around us); (2) disciplinary procedures (setting of standards). The proposed Council meeting timetable for 2007 was agreed to: March 15 Palmerston North May 9 Bench and Bar dinner at the Wellington Club May 10 Council meeting at the Wellington Club July 19 Auckland August 17-19 Christchurch annual conference September 27 Hamilton November 22 Auckland It was agreed that the NZBA would explore internet banking. The NZBA currently has 680 members (596 full, 53 judicial, 23 CLO, and 8 hon). [Membership has increased to 683 members post meeting]. As at February 7, 2007 approximately 65% of membership fees had been received for the period 01.10.2006 – 31.03.2007. It was agreed that membership subscriptions for the period 01.04.2007 – 31.03.2008 would be generated during the first week in April 2007. A new layout and design for the NZBA website was proposed. A fully content-managed site is envisaged which would be more interactive and provide more benefit to members. The Council unanimously decided to get this project underway. Miriam Dean QC reported on the bulk buying schemes. Mal Mitchell has retired from Digital Mobile. Our new account management is David Herron. Better text rates are being discussed with Digital Mobile and ultimately a discount on a full package of products and services, including broadband, landline and mobile phones. Bruce Gray outlined the proposed ● Cont. on p.15
N.Z. Bar Association Newsletter. March 2007. Page 14
Continued from page 14
NZ Bar Association Council minutes
programme for the conference which would see written and oral advocacy covered in the first two sessions (with interactive and panel discussions) followed by lunch. The sessions after lunch would be based around media issues. The general consensus was that the conference package should be financially attractive to young members. Stuart Grieve has spoken to Graham Newell about exploring the possibility of running a criminal law conference in conjunction with the Criminal Bar Association. Discussions are ongoing. Miriam Dean reported that the LRF and NZBA sub-committee would meet shortly to continue discussions on the proposed joint conference. The idea has been agreed to in principle and future discussions would revolve around a programme and speakers. Stephens Mills suggested someone present a paper at the AMINZ conference and golf day and that the Council look into a joint venture rather than a straight forward sponsorship. This would ensure a definite presence and would reinforce the NZBA brand. It was agreed the Inaugural Bench and Bar dinner would be held on May 9, 2007 at the Wellington Club. Justice Randerson joined the Council meeting over the lunch period. The Chief High Court Judge referred to topics previously discussed at his December visit. After a general discussion it was suggested that Council should register its concerns again with the Rules Committee about a number of aspects, including proposed costs reform and the “information capsule”. It was suggested our concerns would add weight to those on the Rules Committee who have already expressed uncertainty about these issues. The Council agreed on the following
protocol for associate membership of the Association: ◆ An academic with a barristerial practising certificate is eligible to be an ordinary member. ◆ An academic who has a practising certificate as a barrister and solicitor cannot be an ordinary or associate member. ◆ A legal academic who does not have a practising certificate in New Zealand can be an associate member. ◆ Once judges’ clerks obtain a practising certificate [as a barrister and solicitor] they are eligible to become associate members only for the period he/she is a judges’ clerk. ◆ Crown Counsel are a special category (as they have a practising certificate as a barrister and solicitor) and may be Associate members. Adina Thorn and Trevor Shiels to draft constitutional changes. A proposal is to be drafted for a global membership fee for all Crown Law lawyers, including associate counsel and assistant counsel. [A proposal has since been forwarded to Diana Pryde, practice manager, Crown Law Office.] Chris Gudsell joined the meeting via telephone conference to discuss the intervention rule.
Tony Hughes-Johnson QC circulated a written report to the Council which consisted of the re-drafted intervention rule reforms and commentary. Each section was discussed and parts were cross-referenced with Duncan Webb’s discussion draft paper (circulated earlier). Tony Hughes-Johnson to submit our final draft to Alan Ritchie and Duncan Webb for discussion at the NZLS Board meeting on Friday, February 16, 2007. The Association’s position should be clear as to where we would like to see its rules replace those drafted by Duncan Webb and invite dialogue between Duncan Webb and the subcommittee. A committee was formed to consider a barristers’ sickness and accident fund: Chris Gudsell, Miriam Dean and Adina Thorn. Jim Farmer is to extend a formal invitation to the ABA to attend our Christchurch conference in August in an attempt to maintain links with our Australian counterparts. Recruitment of new members is to be a standing item on the agenda. The meeting concluded at 4.45pm and was followed by a social function for new and existing members. The next meeting will be held in Palmerston North on Thursday, March 15, 2007. ■
INTERNATIONAL CRIMINAL LAW The Japan Federation of Bar Associations (JFBA), the International Criminal Bar (ICB) and the Law Association for Asia and the Pacific are hosting an ICB Council Meeting and joint seminar on International Criminal Law in Tokyo, 18 and 19 May 2007. The program will include guest speakers from ICC including a Judge of the Appeal Division and panel discussions throughout the program. Registration forms and details about the seminar can be obtained from the JFBA website (www.nichibenren.or.jp/en/). N.Z. Bar Association Newsletter. March 2007. Page 15
As another round of Queen’s Counsel appointments takes place, the following article has been reprinted with the kind permission of Stephanie Hawthorne, author and editor of “Counsel”, the Journal of the Bar of England and Wales.
A
silken phoenix has emerged from the ashes with the appointment of 175 new Queenʼs Counsel from 443 applications (see page 44 for the full list). This is the first such competition since 2003. Sir Duncan Nichol CBE, Chair-
Interestingly, nine appointments were from applicants 55 or over man of the independent Queenʼs Counsel Selection Panel says: “Queenʼs Counsel have always been highly regarded for their intellectual and advocacy skills. The Panel has seen its task as to maintain those high standards expected of a silk while ensuring that the opportunity to take silk is open on an equal basis to all who have the
requisite qualities.” The Panel made its recommedations to the Secretary of State for Constitutional Affairs, Lord Falconer of Thoroton, after considering evidence from application forms, some 4,500 references, and interviews with applicants and referees. The somewhat complicated application process, which many hope will be simplified in future years, opened in September 2005 with each candidate submitting up to 11 references from judicial, client and solicitor sources. The Secretary of State said: “I congratulate the Selection Panel on carrying out an exacting task diligently and to such notable effect. Most of all, however, I warmly congratulate all the new Silks. I am sure they will continue to prosper.”
There were 443 applications for Silk in 2005. 68 applications were from women (15.3%), 24 from ethnic minority lawyers (5.4%) and 12 from solicitors (2.7%). Of the 175 appointed (39.5% of all applicants), 33 are women (48.5% of female applicants), 10 are from an ethnic minority (41.7% of ethnic minority applicants), and four are solicitors (33.3% of all solicitor applicants). Interestingly, awards were made to practitioners from specialist fields who may have been disadvantaged in the past by limited exposure to senior judges These include planning, extradition law, immigration and asylum, employment and industrial relations law. In fact some 30 of the successful applicants had no references from High Court or more senior judges at all.
Cont. on page 17 N.Z. Bar Association Newsletter. March 2007. Page 16
Cont. from page 16 By comparison, in 2003, 394 people applied. Of the 121 appointed (30.7% of all applicants), nine were women (23.1% of all female applicants), seven were from an ethnic minority background (30.4% of ethnic minority applicants) and one solicitor was appointed (10% of all solicitor applicants). Westminster Hall Ceremony The rank of Queenʼs Counsel will be formally conferred at a ceremony in Westminster Hall on 16 October. Some referees expressed concerns about the length and complexity of the written reference form and the structured interview. The Selection Panel will be seeking ways to alleviate the burdens on referees by revisions to the process in the future. Sir Duncan adds: “The Panel recognised that the process can be improved in a number of ways and is now giving thought to the nature of such improvements.” Details of the competency framework and the selection process can be obtained from the QC Appointments website. A possible question mark still hangs over the process: A DCA press release of 19 July states: “These schemes are known as ʻinterim schemesʼ because the future of the Queenʼs Counsel rank has not yet been finally determined. Although the aim of the 2003 consultation was to decide whether the rank should be retained, there was not enough evidence in the responses to allow a decision to be made. The rank is therefore being considered as part of a wider study of the way in which information about the quality of legal services providers is given to users of those services. Ministers hope to take a decision about the studyʼs recommendations during the summer.” However, it is very much hoped that the 2007 Queenʼs Counsel competition will start in the Autumn. www.qcapplications.org.uk www.dca.gov.uk Feedback: enquiries@qcapplications.org.uk Stephanie Hawthorn is Editor of COUNSEL N.Z. Bar Association Newsletter. March 2007. Page 17
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