When was the last time you stole something?

Legal practice isn’t science, it’s art. New Zealand lawyers like all good artists therefore should be relentless in their theft of useful ideas from other parts of the world. Like all good thieves, let us first go for the low hanging fruit. First up, two concepts from English civil litigation practice: pre-action letters and a general form of witness statement.

The Civil Procedure Rules, broadly the English equivalent of the New Zealand High Court Rules, provide for a “pre-action” regime to apply in many cases. This entails sending a detailed written letter of a claim before commencing litigation. There are specific requirements for different kinds of subject-matter (personal injury, and so on) and a general expectation that a general form of letter will be sent if a specific “pre-action protocol” does not apply.

The benefits of this approach are legion. It encourages parties and their advisors to think carefully about their case, and “get it right the first time”. Failure to abide by the relevant pre-action protocols may have costs consequences later, even if the party succeeds. It is flexible. It does not apply where there is genuine urgency or where there is some other good reason. It encourages meaningful dialogue generally, and earlier.

The only potential downside, in New Zealand specifically, is that the High Court Rules do not expressly provide for the recovery of costs for any work undertaken during this time, whereas in England it is more likely to be regarded as incidental to the preparation of proceedings.

In English civil procedure there exists a creature called the witness statement. It is a written statement of facts, verified by a “statement of truth” to which the witness attests. It is not sworn or witnessed. It is a general form of document used whenever a written statement from someone is needed. Its particular significance is that it is generally an acceptable substitute for an affidavit. The retirement of the affidavit from regular civil practice in New Zealand would be welcome. It is an unproductive administrative burden on solicitors. The act of swearing or affirming adds nothing; it is a grim business which is disposed of as quickly as possible. It is delusional to think it makes someone think twice about their evidence, particularly when it has already been prepared.

It is nice to think that every firm in the land has a holy book at reception, and equally it is telling that it will almost certainly not be consulted; it is a an attractive paper weight.

A submission to the NZ Rules Committee on the above will have the support of this humble periodical. This benign form of borrowing certainly has a precedent. The recently recast High Court rules, the reform of the legal profession and the regulatory framework for the provision of financial services all owe a great deal to British sources. Why reinvent the wheel when you your old cousin is making their spare available for free? (Whether they know it or not).

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