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TAL98

Time and Limitations

NZ $35.00
incl GST
Author(s): Chris Finlayson, Peter McKenzie
Published: 3 March, 1998
Pages: 74

   

Introduction


This seminar has been some years in the making. Some time ago we suggested to the Continuing Legal Education Committee of the New Zealand Law Society that there was merit in running a seminar on important rules relating to time in the various rules of court and in certain key statutes. It was suggested to us that we should await the enactment of a new Limitation Act based on the Law Commission’s work on limitation law reform. We waited and waited but no law reform occurred. So toward the end of last year the Continuing Legal Education Committee suggested that we run our seminar notwithstanding the non-enactment of new limitation legislation. Enquiries made of the Ministry of Justice reveal that a limitation bill was indeed drafted but has languished in Never Never Land since it was first discussed by a Cabinet Committee. There appears little prospect that there will be new limitation legislation this side of the Millennium. This is most unsatisfactory situation which can give us little confidence in the law reform machinery of this country.

Limitation is, of course, only a small part of the subject of time. Indeed it is not possible within the context of this paper or in the seminars to cover all the miscellaneous rules relating to time in statutes, regulations, common law and equity. Instead we have tried to concentrate on the key provisions and principles, particularly those where there have been substantial changes in recent years. Thus, in the section on time and rules of the court, some emphasis has been given to rules dealing with want of prosecution, failure to take a step within one year and new time limits. Some common themes emerge. First is the increasing pace of litigation and the requirement that practitioners keep up with the new pace. It is a trite proposition that under the traditional adversarial approach to litigation, it is the parties who dictate at all stages the form, content and pace of proceedings. See, for example, R Eggleston “What’s wrong with the adversary system?” (1975) 49 Aust LJ 428. At page 429 of the article, the author identifies four key strands of the adversarial system:
  • pre-trial control;
  • limited or nil judicial involvement before continuous oral trial;
  • evidence solicitored by parties by questions, the judge merely clarifying occasionally;
  • rules of procedure policed only by opponent.

The last ten years in New Zealand have illustrated how far this country has moved from the traditional approach. Hands on management by judges is becoming very much a feature of litigation. Judges have threatened to summon witnesses, case management (and not only in the Commercial List) is now common place, briefs of evidence are regularly exchanged (the refusal to do so being the exception rather than the rule) and finally, the time limits within which steps are to be taken have become shorter. For this reason alone, it is worth looking at the various rules to ensure that everyone involved in litigation has a sound understanding of not only what is required to be done but the time within which it must be done.
A possible second reason for this seminar is the potential cost of making a mistake. Enquiries made by us prior to completion of this seminar booklet reveal that up to 10% of all claims against solicitors in New Zealand and Australia relate to mistakes made in computing time or failure to do things in a timely fashion. This figure, which includes non-litigation, time-related problems, illustrates just how important the topic is and how necessary it is to have a sound understanding of the rules.

In this introduction we have focussed on the importance to practitioners of dealing with matters in a timely fashion. Practitioners are, however, not alone in having to perform in a timely manner. “The Times of London” of 14 February 1998 tells the story of a fast exit for the slowest judge in the English High Court. Harman J recently resigned after three Court of Appeal judges attacked his “intolerable” delay in deciding a case. His Lordship was well known for taking a long time to deliver judgments, and in this case justice had cooked very slowly for Mr Goose, a Lincolnshire farmer, who had to wait 20 months for a decision on his negligence claim against a firm of accountants. Although the farmer’s barrister repeatedly pressed for a ruling, becoming so frustrated by the delay that he considered taking out life insurance on the judge in case he died before making a decision, nothing could be done. By the time Harman J came to give judgment (incidentally dismissing the farmer’s case), His Lordship had lost his trial notes. When ordering a re-trial, Peter Gibson, Brooke & Mummery LJJ said:

Conduct like this weakens public confidence in the whole judicial process. Left unchecked, it would be ultimately subversive of the rule of law. Delays on this scale cannot and will not be tolerated. A situation like this must never occur again.

Gibson LJ added:
Litigation causes quite enough stress as it is, for people have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety, and may well increase it.
Thus ended the colourful career of the judge who was nicknamed “Harman the horrible” and voted the worst judge by commercial lawyers who took part in a poll run by the magazine “Legal Business”. It was the third time he had won the title. This was not the first time that His Lordship had been criticised for slowness of justice. On one occasion he took 15 months to deliver a judgment and on another occasion it took over two years.

So observance of time requirements and the need to deal with litigation in a timely manner is not only the responsibility of lawyers. Judges have obligations as well.

 

Content outline

  • Time and the rules
  • The district Courts and High Court rules
  • The Court of Appeal (Civil) Rules 1997
  • The Privy Council Rules
  • Limitation defences
  • The Commerce and Fair Trading Acts
  • Defamation Act 1992
  • Accident compensation
  • Insurance Law Reform Act - delay in notifying claim
  • Succession
  • Equity and time
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