By: Bethany Entwistle
Published: 7/06/2017
In New Zealand, you have a right to go to court and represent yourself; self-representation procures access to the courts.  But, whether it provides access to justice is another question.  This is because accessing the courts is not the same as having the ability to get the necessary resources or advice to effectively navigate the legal system.[1]
 
The cost of legal services is the most common reason for self-representation.[2]  While the Legal Services Amendment Act 2007 allows a portion of New Zealanders to obtain legal aid by increasing the financial threshold and simplifying the criteria, it also requires a higher portion of recipients to pay back a grant.  Other reasons for self-representation include:
 
•      A belief that the case is straightforward
 
•      A previous bad experience or distrust of lawyers
 
•      A desire to get the case over and done with as quickly as possible
 
The lay perception of the legal system is often that someone tells their story and a judge makes a decision.[3]  However, representing yourself requires much more than filing an application and explaining to a judge what happened.  You must have a clear understanding of what the litigation process involves before making the decision to represent yourself in court.
 
The law can be complex, even for lawyers.  If you represent yourself, you will be required to complete the same steps as lawyers, such as the writing and filing of applications and pleadings that use
suitable wording and legal references.  The general steps in the litigation process that you will need to complete (amongst others) are outlined below.[4]

Preparation
 
•      Identifying and understanding the applicable law;
 
•      Accessing legal resources for research purposes (including case law and legislation);
 
•      Identifying and completing the relevant forms to be filed with the court;
 
•      Preparing evidence, including written briefs of evidence or affidavits; and
 
•      Applying the law to the facts in written submissions.
 
The hearing
 
•      Adhering to courtroom etiquette;
 
•      Presenting the facts to the court through oral examination of witnesses, cross-examination and presenting exhibits;
 
•      Making legal submissions to the court, with reference to relevant legal principles, statutes and case law; and
 
•      Complying with court directions and orders.
 
The failure to properly understand court processes and procedures can lead you to make costly mistakes such as presenting irrelevant and unnecessary material, not being aware of options when making pleas, and making errors when writing and filing documents.  It can also lead to unnecessary stress and frustration.
 
The effects on others
 
You must consider the effect that representing yourself will have on court staff, the other party, their lawyers, the judge and on your personal relationships.  A lack of in-depth knowledge of the law and court processes is likely to increase hearing times; the judge and court staff will have to guide you through the process and spend time explaining the procedure.
 
In the Family Court in particular, self-represented litigants are found to increase the other party's costs and stress, and children may also become upset and unsettled.[5]  With respect to criminal proceedings, concerns have been expressed over witnesses being questioned by the person who is accused of committing a crime against him or her, or a family member.[6]
 
The risk of pleadings being struck out or being inadequate
 
Even for lawyers, drafting effective pleadings is a difficult skill.
 
It is highly recommended that pleadings (such as a Statement of Claim or Statement of Defence) are written by a lawyer.  This is because a court may strike out all or part of a pleading if it does not disclose a reasonably arguable cause of action, is likely to cause prejudice or delay, is frivolous or vexatious, or is otherwise an abuse of process of the court.[7]  For example, the court has struck out pleadings that are prolix, contain irrelevant and evidential matters, and are unintelligible in parts.[8]

A pleading that is not struck out may be subject to an order for further particulars.  The courts have discretion to make these orders when pleadings are incomplete; for example, they miss a key element of a cause of action, or fail to plead a relevant defence.  This will inevitably result in further costs.
 
The risk of being a vexatious litigant
 
Unrepresented litigants are often associated with 'vexatious litigants'.  A vexatious litigant is someone who initiates a proceeding which has no reasonable chance of success, for the sake of causing annoyance.[9]  It encompasses a proceeding which discloses no cause of action.[10]  In fact, while many unrepresented litigants do have valid causes of action, they are often unable to properly express them without adequate legal representation.
 
In the event that a person is considered to be a vexatious litigant, the Senior Courts Act 2016 provides new powers for the High Court to issue three extensive orders restricting a person from continuing or commencing civil proceedings (not criminal proceedings). A judge may make the following orders:[11]
 
1.    A limited order – restraining a party from commencing or continuing civil proceedings on a particular matter in a senior court, another court, or a tribunal
 
2.    An extended order – restraining a party from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal
 
3.    A general order – restraining a party from commencing or continuing civil proceedings in a senior court, another court, or a tribunal
 
A represented litigant is less likely to be a vexatious litigant; while a lawyer represents his or her client's interests, the lawyer is not blinded by emotions caused by being personally involved in the dispute.  Therefore, is able to bring a more objective and reasonable case before the court.  Ultimately, lawyers can provide an independent 'second opinion' about the merits of a claim, which can be useful when considering strategy and framing arguments.
 
Conclusion
 
Despite the attraction of no legal fees, going to court without a lawyer is usually not a good idea.  A lawyer knows the system, and has special skills and training.  Self-representation will allow you to access the courts, but will it really allow you access to justice?


[1] Bridgette Toy-Cronin, “Going to Law without a Lawyer: Litigants in Person in the New Zealand Civil Courts", (2015)
[2] Ethel Benjamin, "Access to Justice – Who needs Lawyers?" (November, 2014) at 4
[3] Ibid
[5] Ibid
[6] Ibid
[7] High Court Rules 2016, Rule 15.1
[8] Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 at [90], [95]
[9] L v W [2003] NZFLR 961
[10] Spiller, "Butterworth's New Zealand Law Dictionary" (7th ed, 2011) at 124
[11] Senior Courts Act 2016, s 166-169
Download article in PDF format



 Security code

Wynn Williams Christchurch
Level 5, Wynn Williams House, 47 Hereford Street, Christchurch 8013, New Zealand.
PO Box 4341, DX WX11179, Christchurch 8140.
+64 3 379 7622
+64 3 379 2467
Wynn Williams Auckland
Level 11, AIG Building, 41 Shortland Street, Auckland 1010, New Zealand.
PO Box 2401, Shortland Street, Auckland 1140.
+64 9 300 2600
+64 9 300 2609
Top

This page is best viewed in an up-to-date web browser with stylesheets (CSS) enabled. While you will be able to view the content of this page in your current browser, you will not be able to get the full visual experience. Please consider upgrading your browser software or enabling style sheets (CSS) if you are able to do so. The latest version of Firefox, Safari or Google Chrome will work best if you're after a new browser.