Discovery and case management reform effectiveness appraised

The Chief High Court Judge, Justice Helen Winkelmann, and Rules Committee Chair Justice Asher have released a short report on the effectiveness of the 2011 and 2012 discovery and case management reforms.

The reforms aimed to reduce the costs and to increase the speed of litigation. 

They say statistical results and analysis of an online survey of lawyers show the goals of the reforms are being reached. 

The online survey was conducted by the Ministry of Justice and responses were obtained from lawyers, High Court Judges and High Court registry staff. Although only 96 responses were received, the review says some useful information was obtained.

"Contrary to the position in England, the majority of lawyers and Judges considered that the change from the Peruvian Guano test for discovery to an adverse documents test had led to a change in the way the profession approaches discovery. 

"It is pleasing to note that the majority considered that counsel now actively engage each other in discussions about whether tailored discovery is appropriate, rather than simply agreeing on the default standard discovery test. It seems clear that there has been increased co-operation between parties on discovery issues since the new discovery regime took effect."

The report says the survey also showed that the majority of lawyers and Judges surveyed agreed that initial disclosure has helped progress cases by assisting in the identification of issues and the settling of pleadings.

Analysis of statistics collected by the High Court registry showed that 67% of defended general proceedings are classified as ordinary and 31% as complex. The report says the high percentage of complex cases is likely to be due to the majority of defended Christchurch earthquake cases being so classified.

"There has been a 14% improvement in the disposal time of general proceedings in that the average age of general proceedings disposed of by trial in the 12 months to 28 February 2012 (when the case management pilot was implemented) was 589 days. By 30 June 2014 it was down to 504 days," the report says.

It notes that while it is not possible to attribute this improvement entirely to the case management and discovery reforms, "the reduction is a further indication that the effect of the reforms is positive."

The report says statistics show that for general proceedings in the pre-pilot era before March 2012, the average number of conferences was 2.56, while in the pilot period this dropped to 1.89, and since the new rules came into effect this has dropped further to 1.81. 

The Judges say that perhaps the most pleasing of all developments has been the improved co-operation between counsel that can now be inferred from the fact that there are fewer conferences and defended interlocutory applications.

"Much of the success of both the reforms can be attributed to the positive reception they have received from civil litigation lawyers. It is to be hoped that these reforms will maintain their momentum in the years to come."