Justice Minister jostles Judges into action
||Back in the day when cars and telephones were in their infancy, judges thought nothing of delivering lengthy oral judgments immediately after complex hearings.
In fact the practice was common in civil cases in England until the 1940s, with one of the leading proponents being the Master of the Rolls, Lord Denning. "Words are the lawyer's tools of trade," he once declared. "The reason why words are so important is because words are the vehicle of thought. When you are working out a problem on your own - at your desk or walking home - you think in words, not in symbols or numbers."
Of course, this still holds true for judges and lawyers today, but increasingly some judges are taking an inordinate amount of time in delivering decisions on what are sometimes relatively straightforward matters. Delays of two years or more before lengthy written judgments are released are not unheard of in New Zealand and it is raising the ire of Justice Minister Judith Collins.
As she masterminds a major overhaul of the way our courts are run, the Minister has put judges on notice that lengthy delays in the delivery of reserved judgments will not be tolerated.
"We live in an era where people can shop, bank and pay bills online," she says. "It's about time we look at how routine court matters can be handled more efficiently to bring justice up to speed. New Zealanders are paying for this justice; they should be able to access it. People also have a right to know about judgments that remain outstanding beyond a reasonable time for delivery."
Ms Collins says she expects each Head of Bench to publish their own protocols about what is a reasonable time to deliver judgments and to provide information on how to obtain information about reserved decisions. She accepts that some judges might see her actions as interfering with judicial independence but denies that this is the case.
"The concept of judicial independence is something I take very carefully. But my view is that judicial independence relates to what is in the judgment, not whether or not we have one."
Ms Collins is also quick to dismiss claims that the solution to the problem is to appoint more judges. "If I have heard that once I have heard it 100 times, but with crime rates dropping and fewer people going into court it cannot be right; it does not compute."
Retired High Court judge the Rt Hon Sir Edmund Thomas QC who has served on the Court of Appeal and in an acting capacity on the Supreme Court told Law News that he would be surprised if there was a problem in any of those courts. "But if there is a problem with overdue judgments, I definitely support something being done about it. The principle of ensuring that judgments are delivered within a reasonable time after the hearing is unarguably right. It is inexcusable to have a judgment delayed for more than a few months, even in the most complicated of cases.”
"The problem is that in most cases judges go from sitting in one case to sitting in another and no time is allocated to write the judgments,” he says. “The judge must come back to the task later and time is taken in recollecting and reconstructing the facts and arguments."
Sir Edmund says during his many years on the Bench he was always prepared to write judgments in his own time and that was the norm for most judges. “When I was on the Court of Appeal the workload was very heavy and I worked every evening except Friday evening and took only one day or one half day off over the weekend. In an appellate court there is not only the obligation to the parties to get the judgment out, but also the obligation to one's colleagues not to hold up the works."
Sir Edmund says a former President of the Court of Appeal, Sir Ivor Richardson, devised an excellent system to ensure there were no unnecessary delays in the delivery of reserved judgments. But for reasons unknown to him, it has since been abandoned.
"Sir Ivor was probably the best judicial administrator the common law world has produced and ran a most efficient court. Judges had a meeting once a month where the President would produce a schedule in which each of the appeals with outstanding judgments would be listed. The judge responsible for writing the judgment would explain the reasons for any delay and the prospect of getting the judgment completed. The rule of thumb was that all judgments should be completed within three months."
Sir Edmund says that during his time on the High Court he delivered oral judgments "whenever possible, and that was most of the time."
"On the Court of Appeal Sir Ivor and I also delivered a great number of oral judgments. There are many cases which are not difficult and have no novel law involved so what is then important to the parties is getting a decision. They do not need an erudite exposition of the law and I think that is often overlooked.
"Judges feel, as a matter of pride and to be conscientious, that they must expound on the law but they make a rod for their own backs,” he says. “Many cases can be decided by simply recounting the facts, stating the general legal principle involved and then explaining the judge's reasoning for his or her decision. Personally I found this a most successful formula."
Sir Edmund believes there is a simple solution
to ensuring that judgments are delivered in a timely manner.
"To my mind no more is required than that courts must have a system in place which is capable of flagging undue delays. The system can be monitored by the Heads of Bench with reports to the Justice Department. A judge who too often takes too long to deliver his or her judgments, and who cannot remedy his or her tardiness after receiving attention and assistance, should probably be asked to step down."
Legal insiders spoken to by Law News have singled out the Employment Court and the Environment Court as the worst offenders in terms of delayed judgments.
This view is apparently shared by Judith Collins who has been reported as saying she is particularly concerned about delays in Employment Court judgments which have been up to two years in the making. She told the New Zealand Herald that "from my point of view it is totally unacceptable as the Minister of Justice to stand by and let some cases, particularly Employment Court cases, take 18 months or two years for decisions to come out."
Ironically, the court's website says "the Judges of the Employment Court expect that in 2013, 85 per cent of judgments will be delivered within three months of the last day of the hearing or receipt of the last submissions, whichever is the later date. From the 2014 calendar year, the Judges expect that 90 per cent of such judgments will be delivered within the three month period".
Employment law specialist, Philip Skelton QC, told Law News there have been instances of unacceptable delays in the issuing of judgments in the last few years. "Justice delayed is justice denied, but I would not say that this is a systemic problem nor do I believe it is fair to label the Employment Court as the worst offender. Generally speaking the Employment Court is very responsive in allocating hearing dates and issuing decisions where there is a degree of urgency involved, for example, when dealing with injunctions to restrain threatened strikes or lock-outs or when interim reinstatement is sought."
Mr Skelton believes inexcusable delays are not always the fault of judges. "There appears to have been in more recent times a fairly significant increase in the number of lay litigants representing themselves in challenges before the Employment Court. I suspect that this, and pressure on resources, has contributed to the delays in the issuing of some substantive judgments by the Employment Court."
He also has some reservations about judges issuing oral judgments. "While it may be possible in some cases for judges to issue oral judgments, I would be opposed to the introduction of any mandatory requirement to do so as part of the Minister's reform package. A mandatory requirement to issue an oral judgment in every case risks undermining the credibility of the court's processes and the integrity of its judgments if they are not based on the opportunity for careful, considered review of all the evidence, particularly where there are complex legal issues or evidence."
Mr Skelton says the Heads of Bench should issue guidelines that set out "a clear expectation as to the time within which judgments are to be delivered. A system should be put in place to better monitor any delay and to require any judge who has been unable to achieve the target to provide a written explanation to the Head of Bench as to the reason for not achieving it."
Justin Smith QC of the New Zealand Bar Association told Law News that one of the reasons for delays in the past was a convention that "it was improper to inquire as to when a judgment would be available".
"Many lawyers also felt that to inquire or complain about a delayed judgment was not likely to endear the inquiring party to the deciding judge. For a combination of these reasons litigants in the past tended too often to endure lengthy delays and the bench was perhaps allowed to believe that such delays were acceptable. However, with recent voluntary reforms this position has largely been dealt with at least so far as the High Court is concerned. For these reasons the Bar Association has some doubt about the need for the proposed reforms as far as the High Court is concerned."
The reforms are contained in the Judicature Modernisation and Other Matters Bill which is expected to be introduced by the end of the year.
The reforms will:
- Require Heads of Bench to publish protocols about delivering judgments.
- Require common rules across all courts on outside employment or positions for judges.
- Require guidance for judges who step aside from cases to be published.
- Require all written judgments to be published unless there is good reason not to.
- Allow court documents to be filed, held and issued electronically.
- Require the use of audio-visual links for procedural cases involving prisoners in order to reduce transportation.
- Enable more specialist panels to be established in the High Court.
- Allow more civil cases to be heard in the District Court by extending the current $200,000 limit to $350,000.
- Give the Chief District Court Judge powers to manage District Court Judges' workload.