"The court system is for many a foreign land," said Chief Justice Helen Winkelmann. Photo / File
People braving the court system without a lawyer now make up the majority of civil cases - more than 13,000 a year - deepening fears that justice is more available to those who can pay.
Justice Minister Andrew Little says the figures obtained by the Herald show a concerning trend. He worries that if civil courts become further out of reach, Kiwis will "become prey to society's powerful interests".
The Ministry of Justice recently started collecting data on self-representation, after the NZ Law Society and Chief Justice Helen Winkelmann warned of a "justice gap", because many can't afford hefty lawyers' fees.
That data has now been released under the Official Information Act, and shows nearly 13,500 civil cases last year had a "self-represented litigant" - about 56 per cent of all active cases.
That compares with 51 per cent of such cases in 2017, and 47 per cent in 2016.
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The phenomenon is largely limited to civil cases, where stricter tests for legal aid apply. Finding an available lawyer can also be difficult - about 200 lawyers were taking civil legal aid cases in 2016 (a 50 per cent drop compared with 2012), out of a total of more than 12,000 lawyers.
Dr Bridgette Toy-Cronin, director of the University of Otago legal issues centre, and an expert on the topic, said the situation should be a "warning bell" to the legal profession, and a reason for innovation in how services are offered - and priced.
Currently the most common response to a civil justice problem was to give up on taking action, she said.
"We don't have a shortage of lawyers, we have a shortage of price points that people can afford."
Toy-Cronin said the ministry figures should be treated with caution. It was common to have changes in representation during a case, for example, and there would be action such as bankruptcies and liquidation included.
"But it does look like self-representation is trending up, which is consistent with what's happening in other jurisdictions."
A key reason was the cost of private legal representation - hundreds of dollars an hour - how hard civil legal aid was to get, as well as the limited number of lawyers providing it. Another factor was people having greater access to information because of the internet.
Human rights lawyer Dr Tony Ellis recently wrote to Little, calling the civil legal aid system a "national disgrace", and one bogged down by onerous paperwork and poor remuneration.
That meant a severe shortage of available lawyers - he had to turn down well over 650 people seeking civil court representation last year alone.
Civil cases could involve tax, fraud, estates and human rights issue, he said, and applications filed by those without lawyers were often of poor quality and ate up court time.
Ellis said research involving criminal cases had shown a person with a lawyer was three times more likely to win than someone self-representing, and the same effect was likely in the civil court. Another problem was security for costs, when the loser in legal proceedings has to pay the legal costs of the other party.
Little said there was no doubt the cost of hiring a lawyer and court fees put litigation out of reach for many.
"It is likely that legal aid thresholds mean many people on quite modest incomes cannot get assistance, and so resort to representing themselves. It is a concern, fewer and fewer lawyers are making themselves available for legal aid work."
Little said the Government was reviewing the legal aid scheme, and lifting the threshold of claims to the Disputes Tribunal to $30,000, so more claims could be sorted there.
"I remain concerned that if the civil courts get further and further out of reach, then more and more people have no means to enforce their rights, and become prey to society's powerful interests. It was this concern that led to the establishment of the Canterbury Earthquakes Insurance Tribunal for unresolved claims in relation to that matter. It is a low-cost, high-powered forum for dealing with those claims."
The ministry has taken steps to make civil cases easier for people without a lawyer, including a frequently asked questions sheet and helpingpeople who want procedural advice. The NZ Bar Association is also encouraging members to take on more civil aid work.
Self-representation has caused concern at the very top of the judiciary. Chief Justice Helen Winkelmann addressed the issue in a 2014 address, given when she was Chief High Court Judge.
Court fees for a straightforward, one-day hearing in the High Court were about $6700, she noted, and self-representation was a symptom of a "justice gap".
"The unrepresented litigant has none of the knowledge of the law to make decisions as to how a case should be pleaded, or what evidence is relevant to the case. Even if they have undertaken their own researches and attained some mastery of the law and the process, they are embroiled in the dispute. They will not and cannot have the benefit that counsel has of some level of emotional detachment from the dispute, a key feature of effective advocacy," Justice Winkelmann said in the 2014 speech.
"The court system is for many a foreign land and the notion of bringing proceedings without legal representation can be compared to the fearful prospect of being stranded in a foreign land unable to speak the language, and without the money needed to find your way home."
Navigating major legal action without a lawyer creates pressure that's all encompassing and tolerable to only a minority of people.
That's the view of Auckland businessman Matt Blomfield, who has self-represented in a number of cases, and recently fought a seven-year legal battle against Slater.
Blomfield won, but only after huge effort - he produced about 36,000 pages of documents relating to the defamation case alone, and the total cost neared $1m.
"You find you're spending all day, every day, morning and late into the night sitting there and trying to figure it out," he recalled.
Blomfield only had a lawyer for the end of the case against Slater, but was mostly on his own up until then, as he was with other successful action.
Without legal training, he copied the best - identifying similar cases and using documents as templates. Blomfield sat in court to observe the litigation process in defamation action.
"These [lawyers] are $1000 up to $2500 an hour. The information they share with the court and their thinking is far superior [to learning] from reading Google."
He compared the feeling of speaking during early court appearances to standing up in front of school assembly. A friend who witnessed one hearing told him he resembled a nutty professor, "all dotty and confused, losing paperwork".
However, Blomfield soon gained confidence, and said judges would do all they could to get to the bottom of a situation - so long as the person was respectful, and - crucially - didn't lie about facts.
Another tip: Prepare, and prepare again. Most lay litigants lost because they couldn't cope with the workload and stresses, he said, or they didn't file documents on time.
"It takes a special kind of individual to be able to embroil themselves in an intellectual battle with someone who is trained to fight in that particular arena," he said. "You don't eat, you don't sleep ... it becomes all-encompassing inside your head, you have this mental overload from day one."
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