Editorial: A bar to good justice

Last updated 05:00 24/09/2009

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OPINION: Once upon a time, the National Party caucus principally comprised farmers and lawyers. Few cockies remain in the Key-led Government's serried ranks but legal eagles sit at the Cabinet table. Justice Minister Simon Power is one; so, too, is Attorney-General Chris Finlayson.

And neither, it seems, is afraid to challenge one-time colleagues.

The justice minister has inherited what is known as the Criminal Procedure (Simplification) Project, which involves not only reviewing penalties, and the causes of crime, but also a substantial overhaul of the criminal justice system. It is no small undertaking.

Earlier this month, Mr Power published a discussion document that, in part, criticises counsel who earn some of their income from the legal aid budget. Some defence lawyers are unimpressed.

Last week, it was the attorney-general's turn, although he seemed to be gunning for lawyers who undertake civil cases as well as those practising in the criminal courts. The tragedy for all lawyers, he told the Bar Association, was that "some of our number let us all down ... they cannot even get the basics right. We have tolerated them for too long".

He didn't stop there: "If litigation, both civil and criminal, has reached a crisis ... in this country, it is at least partly because some in our ranks are simply not up to the job. Either they shape up or ship out."

It is commonplace for a National-led administration to lambast parts of the trade union movement, for example, but rarer for ministers of a blue hue to challenge the professions, particularly lawyers and doctors. But Mr Power and Mr Finlayson are at one on this.

The justice minister is on record as saying that one of his priorities is for the justice system to be refocused on the participants who don't earn their living from it. That removes from centre stage, but puts into a more uncomfortable spotlight, lawyers of every stripe, including those who practise civil law.

Anyone involved in civil litigation knows about the time it takes and the prohibitive expense. It is why some cases find resolution via arbitration, and the number of civil actions is falling.

At a seminar for civil litigators early last year, former Bar Association president Jim Farmer, QC, said no-one could sensibly argue that the cost of civil litigation was reasonable, blaming complex and prescriptive court rules, grinding "discovery" practices, too much paperwork, judges failing to rein in litigators, and a shift to lawyers billing by the hour. Chapman Tripp's Jack Hodder backed him up: "...the mainstream civil justice system is profoundly flawed and offers depressingly little value to any litigant ..."

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No wonder ministers are speaking frankly. They know that, when courts take aeons to hear a case, justice is more than delayed. It undermines public confidence in the justice system.

Ministers' coruscating commentary, however, is one thing. It must be underpinned by action. In a sphere wrought with tradition, delays and expense, Mr Power and Mr Finlayson can expect resistance. They have their work cut out.

- The Dominion Post

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