At The Bar
December 2009
Equitable Briefing Policy to be implemented in 2010 The New Zealand Bar Association will be approaching government agencies and then major law firms to urge them to support a new Equitable Briefing Policy unveiled at the Bar Association’s annual conference in Wellington in September. The policy was launched by Attorney-General Chris Finlayson and the Bar Association plans to roll it out gradually, with an initial focus on government agencies. Speaking at the launch, Bar Association President, Colin Carruthers QC, said that there had been concern for some time that competent women barristers were not being considered for work for which they were well-qualified. The Equitable Briefing Policy aimed to address that by making government agencies and law firms aware that there were female barristers who had skills and experience in specific areas of competence.
The policy, which is available on the Bar Association’s website, states that equitable briefing maximises choices for legal practitioners and their clients, promotes the full use of the independent bar and optimises all counsel’s opportunities for practice development. “The adoption of equitable briefing practices can play an important role in the progression of women in the law, the judiciary and the wider community.” The policy states that it has been formulated for voluntary adoption by both clients and legal practitioners, including in-house counsel, throughout New Zealand. The document states that, in selecting counsel, all reasonable endeavours should be made to – • identify female counsel in the relevant practice area
Mr Carruthers said that barrister Kate Davenport had been the impetus behind the policy, with support from the New South Wales Bar Association’s President Anna Katzmann SC and Justice Michael Slattery. He said that what was beginning to happen in New South Wales was very positive and he believed that it could be replicated in New Zealand.
• genuinely consider engaging such counsel
“I think it is probably an idea not only whose time has come, but which is overdue.”
The policy states that counsel can be identified by searches of the Bar Association’s website – www.nzbar.org.nz. It says that a genuine consideration would have regard to the skills and competency of counsel, regardless of gender, and should avoid inappropriate assumptions about the capacities and aptitude of female and male counsel.
Mr Carruthers said that women were now returning to New Zealand with degrees from institutions such as Harvard and Oxford universities, and it was a source of concern if they went to the bar and did not have the same opportunities as their male counterparts. Ms Davenport said that the goal of the policy was not to insist that women be briefed, but to ensure that they were considered for briefing. It would be suggested to those briefing that, when they put names forward for briefing, they included the name of a competent woman as well. She said that the Bar Association hoped to persuade large law firms and corporations which briefed barristers and agreed to adopt the policy to be in a position to account for the decisions they made when briefing counsel. Mr Carruthers said that the policy would be introduced gradually. The Bar Association wanted to approach the Solicitor-General first, then government agencies and, after that, major law firms.
• regularly monitor and review the engagement of female counsel, and • periodically report on the nature and rate of engagement of female counsel.
“Where there are equally capable male and female counsel available, arbitrary and prejudicial factors should not operate to exclude the engagement of female counsel.” The policy suggests that briefing firms, companies, agencies and other counsel should develop the capacity to collect data and report on briefing outcomes. The data would show the types of briefs; the jurisdictions or forums in which counsel were briefed; whether the matter was interlocutory, a contested hearing or an appeal; the role of counsel as junior or as leading counsel; and the pay rates. The Bar Association suggests that in-house counsel should consider requiring firms engaged by their organisations to ensure that capacity exists to collect such data. Care should continued over...
INSIDE THIS ISSUE Pg 1 - Equitable Briefing Policy to be implemented in 2010 Pg 3 - President’s Report Pg 6 - Training and Continuing Education Requirements Extended Pg 7 - Bleak Warning About Advocacy in Criminal Courts From Old Bailey’s Head Judge Pg 8 - UK Tackles Reform of Civil Case Costs Pg 10 - NZBA Annual Conference Pg 13 - Introducing Our New Junior Barristers’ Representative - Toby Futter Pg 14 - Members Benefits Update Pg 14 - Litigation Skills Scholarship Recipients Pg 15 - Face Facts Pg 16 - Bar Chat Pg 17 - What Members Need to Know Pg 18 - International News and Events Pg 19 - International Bar Association Conference Pg 20 - NZBA Council Summary of Meeting Minutes
EDITOR Catriona MacLennan Tel: 0064 9 378 0964 Email: catmac@orcon.net.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Tel: 0064 9 377 8959 Email: miriam@barrists.co.nz Monique Pearson Tel: 0064 9 303 4515 Email: nzbar@nzbar.org.nz Graham Kohler Tel: 0064 9 307 9816 Email: kohler@shortlandchambers.co.nz John Matthews Tel: 0064 9 409 2010 Email: jgmatthews@xtra.co.nz DESIGN & PRINT Amanda Brett, Kinetech Creative Tel: 0064 9 576 8393 Email: amanda@kinetechcreative.co.nz New Zealand Bar Association Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www. nzbar.org.nz P O Box 631 Auckland 1140 2
Equitable Briefing Policy to be implemented in 2010 continued be taken to ensure that the data is not used improperly or released in a way which identifies clients or other particulars.
“The adoption of equitable briefing policies leads to real changes in the way government agencies go about engaging legal counsel.”
“The objective of reviewing, monitoring and then reporting to clients and to the New Zealand Bar Association on the nature and rate of engagement is that female counsel be briefed at no less than the prevailing percentage of female counsel in the relevant practice area. Applicable statistics are available from the New Zealand Bar Association.”
New South Wales Director-General Legal Management Services in the Attorney-General’s Department, Laurie Glanfield, in a July 2008 media release said that the policy was designed to promote opportunities for women at the bar. When government agencies engaged barristers or advocates, they were to make reasonable endeavours to identify female counsel in the relevant practice areas, genuinely consider engaging them, monitor and review the engagement of female counsel, and periodically report on the nature and rate of female counsel engaged.
The policy concludes that reviews and periodic reports should have regard to the success or otherwise of the implementation of equitable briefing policies and should initiate steps to redress inequity where it is identified. The Law Council of Australia in March 2004 released a model Equal Opportunity Briefing Policy for Female Barristers and Advocates. Law Council President Bob Gutterson QC said at the time that the policy was aimed at changing the culture and attitudes within the private legal profession. Mallesons Stephen Jacques became the first Australian national law firm to adopt a National Equality of Opportunity Briefing Policy in partnerships with Australian Women Lawyers. In New South Wales, the AttorneyGeneral’s Department in 2004 introduced an Equitable Briefing Policy, which Cabinet in 2008 approved for adoption by all of the state’s government agencies. New South Wales Attorney-General, John Hatzistergos, said that women comprised more than half of the honours graduates from most New South Wales law schools, but were still under-represented at the bar. “The promotion of a governmentwide equitable briefing policy is designed to counteract this anomaly.” Mr Hatzistergos said that, since his own department had adopted an equitable briefing policy in 2004, there had been a significant increase in the amount of work allocated to female counsel.
Ms Katzmann said in October 2009 that women were about to improve their position at the bar after an unprecedented four women were promoted to the ranks of senior counsel. She said that women were becoming less reluctant to put themselves forward, with 14 women among the 120 applicants for silk. In 2008 it had been eight from 127 applicants. However, Ms Katzmann said that she believed that “there is still no equality when it comes to pay equity” and that corporate clients continued to be reluctant to engage female advocates. She referred to a presentation that she had made to one of the major banks about equitable briefing – a policy promoted by most bars and now adopted by most Australian state governments – only to be told that women were not used as the banks briefed on the basis of experience. She said that such attitudes entrenched the current inequities. In the United Kingdom, a 2007 survey of 3600 barristers found that, on average, male barristers earned almost £100,000 more than women per annum. At the top 30 sets of the United Kingdom Bar, there were only 42 female, compared to 479 male, silks.
President’s Report This report records the substance of the oral report made to the Annual General Meeting and develops both the subsequent and additional work of the Bar Association. The report covers highlights for the year, plans for the future and emerging trends which affect the Bar and the legal system as a whole.
The year in summary Annual Conference 2009 One of the highlights of this year’s conference was the opening address by the Attorney-General. He took the opportunity to make a frank, hardhitting address on several aspects of the profession’s work which affect barristers particularly. He explained his concept of the duty of counsel to cooperate in disposing of litigation. He took the profession to task about training. In discussion later, the President was able to point to the initiative on barristers’ training taken as a result of discussions with New Zealand Law Society. Council and Committee work The Bar Association launched its Equitable Briefing Policy similar to the policies adopted by Bar Associations in Australia and other jurisdictions. Correspondence with the AttorneyGeneral and Solicitor-General has ensued, in order to put in place a mechanism for independent oversight and audit of the policy. The Council re-visited Professional Indemnity Insurance arrangements. The outcome was a change in broker for the Bar Association’s scheme. Special thanks to Michael Ring QC who conducted a review of the policy wording. The Bar Council has discussed at its meetings the challenging and uncertain times members have faced and continue to face in terms of the recession and worldwide financial instability. A sub-committee has started work on a well-being policy for members along the similar lines of Bar Associations in other jurisdictions. This initiative is linked to the address made by Anna Katzmann SC at our 2008 annual conference in Sydney.
The Bar Association supported this year’s Sentencing Advocacy Competition final in the Auckland High Court. The competition is an annual event organised by the Auckland High Court judges in collaboration with the Auckland University Law School. Contestants face-off as prosecution and defence counsel on the sentencing of a convicted felon. The sentencing was presided over by Justices Williams and Priestley. The event was well supported by the Judiciary and by law students. In future years it would be pleasing to see more practitioners attend – it is an initiative worthy of support.
the two Law Society representatives reports to the Bar Association, so that the Bar Association is informed in a timely way to enable submissions to be made on initiatives by the Rules Committee.
The Bar Association Rules were amended as a result of the legislative regime change. A marked up version of the Rules is available on the members’ area of the website.
Chief High Court Judge Tony Randerson continues to support the Bar Association by attending regular Council meetings.
The mentoring scheme is tracking well with 15 mentoring relationships currently on the go. The Bar Association launched its new website and integrated webbased membership platform which allows members to log-in and update their practice details and - in a future release - make credit card payments, book events online and renew subscriptions online. Members are encouraged to visit the site at www.nzbar.org.nz and make sure their contact details are up to date. This will ensure they receive regular communications from the Bar Association. Rules reform The Bar Association has been called on increasingly to make submissions on procedural reforms initiated by the Rules Committee. The extent of consultation has pointed up the desirability of having a member of the Bar Association as a statutory appointment to the Rules Committee. At the moment, two representatives of the profession are appointed by the Law Society. The President has taken initiatives with the Law Society, the Attorney-General and the Chairperson of the Rules Committee to have either a statutory amendment to allow for one of the two appointments to be made by the Bar Association or alternatively, a formal arrangement by which one of
Ongoing liaison with the courts and relationship with the judiciary The Chief High Court Judge holds regular meetings with “external agencies” that interact with the courts. A member of the Bar Council attends these meetings on behalf of the Bar Association. Minutes of the meetings are uploaded to the members’ area of the Bar Association’s website.
Ms Sinclair, Ministry of Justice Deputy Secretary and Mr Orr, Chief Legal Counsel for the Ministry attended the Council meeting on 23 October 2008 in Wellington. Items discussed included general challenges for the court system; court room security; court house buildings; digital and audio-visual centres for transcription; and the implementation of the Lawyers and Conveyancers Act. Seminars and training At the invitation of the Council, Professor James C. Raymond visited New Zealand in July 2009 and delivered two seminars in Auckland and another in Wellington on “The Art of Written Persuasion”. Members may recall the Professor spoke at our 2007 conference in Christchurch and was an interesting and entertaining speaker. The first half day seminar for junior and intermediate litigators was held in Auckland and the second in Wellington. Both events were fully subscribed. In addition to the two half day seminars for junior and intermediate litigators, the Bar Association held a one day intensive workshop for senior litigators in Auckland. All the sessions were open to litigators at the Bar and in law firms and were followed by a social event. The Bar Association was delighted to offer members in August 2009 an afternoon seminar with J Anderson (Andy) Little, an experienced US continued over...
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President’s Report continued litigator and mediator, on how to handle the special problems presented in money disputes. Mr Little, as an experienced litigator, mediator and author of the American Bar Association’s text, “Making Money Talk” – How to Mediate Insured Claims and Other Monetary Disputes provided practical and helpful techniques for successfully negotiating money disputes. The Bar Association supported the annual conference of the Arbitrators and Mediators Institute of New Zealand, which was held in August 2009. The Bar Association, Legal Research Foundation and Legal Issues Centre of the Otago University held a followup conference to the very successful “Civil Litigation in Crisis – What Crisis? on 24 September 2009. The half day conference titled “Civil Litigation – Beyond the Crisis?” looked at, among other things, work afoot on the fast track procedure and changes to discovery and written briefs which are being considered presently by the Rules Committee. The pilot seminar “Take the Lead and Shape Your Future” was held in Auckland in 2008. Since then the programme has been successfully run in Wellington and will be held in Hamilton early next year. The aim of the seminars is to provide junior and intermediate litigators with practical advice from judges and senior counsel on what seniors look for in a junior, advocacy skills, courtroom etiquette and raising one’s profile. The New Zealand Bar Association and the New Zealand Law Society The Bar Association, as a result of statutory reform, has a seat on the Council of the Law Society. This has resulted in attendance at Council meetings during the year, but more importantly much wider and closer participation in the Law Society’s affairs. In turn, this has led to a greater recognition of the role of the Bar Association and significantly more consultation than previously. One significant initiative which is being developed at the moment is consultation with the Law Society over barristers’ training and the role of the Bar Association in that. A substantial paper was delivered to the Law
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Society in September 2009. There will be ongoing consultation to formulate a proper barristers’ training programme.
Association for the way in which it had supported the Afghan Bar Association to achieve this historic outcome.
In the meantime, the Law Society has formulated some further provisional rules for experience for barristers before they are entitled to practise on their own account. A period of three years (which is equivalent to that required for a barrister and solicitor) is now required, again pending further development of the rules for experience.
American Bar Association:
The Law Society has provided the Bar Association with a paper recommending mandatory continuing legal education and a competency assurance scheme. The Bar Association will continue to be consulted on these procedures. They form a backdrop to the general thrust by the Bar Association to improve desired standards and deliver proper litigation training. The intervention rule is scheduled for review in February 2010. The Bar Association will work with the Law Society on that review. Members will be consulted for their views. Once again the Bar Association offered two scholarships to young barristers to attend the Litigation Skills programme. The successful scholarship recipients were Brian Webby and Nicholas Silich. International bar links New South Wales Bar Association: Last year’s annual conference in Sydney saw the Bar Association venture off-shore for the first time. The conference proved to be a considerable success with members of the New South Wales Bar Association sharing the stage with Bar Association speakers. ACT Bar Association: At the invitation of Stuart Pilkinton, then Honorary Secretary of the ACT Bar Association and now President, the President and Monique Pearson attended a Council meeting and dinner in Canberra in November 2008. Afghan Bar Association: In 2008 the President welcomed the President of the world’s newest Bar Association, the Independent Afghan Bar Association, to the global profession. The President also acknowledged the International Bar
In both 2008 and 2009, the President has been invited as a Distinguished Guest of the President of the American Bar Association to the annual meeting of that Bar Association, respectively in New York and Chicago. In each year, the meeting provided an opportunity to promote our Bar Association to an international forum. At least among lawyers, New Zealand is a well-recognised and popular destination. One of the consequences of the Chicago meeting this year was an invitation to a committee meeting of the Section of International Law concerning a proposed visit to New Zealand in February 2010. This meeting has matured into participation with the Law Society at a number of functions which are currently being organised for the visit. Australian Bar Association: Chris Gudsell QC attended the ACT Bar Association Bench and Bar dinner on 28 August 2009 and the Australian Bar Association Council meeting the following day. International Bar Association: Clive Elliott represented the Bar Association at this year’s annual meeting in Madrid in October. A copy of Clive’s report is elsewhere in the newsletter. Participation in the international arena In November 2008 Lord Justice Jackson (Sir Rupert Jackson) was appointed to conduct a fundamental review of the costs regime relating to civil litigation in England and Wales. Unlike the New Zealand regime, the United Kingdom system generally provides that the successful party receives a full reimbursement of costs (i.e. indemnity costs). In preparing his report, Sir Rupert and a small team including senior English costs judge Peter Hurst, embarked on a tour of various common law jurisdictions obtaining information and views as to the alternative civil cost regimes that operate in the various countries. Sir Rupert arrived in New Zealand on the 3rd of April and left on the 4th. He managed on the 3rd to hold meetings with representatives of the
President’s Report continued Bar Association (the President, Jim Farmer QC, Stephen Mills QC, Clive Elliott and Graham Kohler). He sought particulars of our regime and views on its effectiveness. He also met with the Law Society and the Judiciary. The British Attorney-General, Baroness Scotland of Asthai, visited New Zealand in February 2009 and was interviewed for our newsletter. During her stay the Baroness met with Solicitor-General David Collins QC, Judge Jan Doogue, former Principal Youth Court Judge Mick Brown, Judge Peter Boshier, Crown Solicitor, Simon Moore SC and Sir Geoffrey Palmer SC. The Bar Association was invited to become a cooperating entity for the Universal Declaration of Human Rights programme, which the Council accepted. The US Ambassador designate to New Zealand, David Huebner, is planning a visit to New Zealand in December and a reception at the United States Embassy in Wellington. The President has been invited, and will attend if the proposed arrangements are put in place.
Dinners A bar dinner was co-hosted on 27 February 2009 by the Bar Association and Auckland District Law Society Inc at the Royal NZ Yacht Squadron to honour the appointment of Justice Joe Williams and Judge David McNaughton and Senior Counsel Sir Geoffrey Palmer, David Heaney, Murray Gilbert, Jan McCartney, Jack Hodder, Simon Moore and Christine Gordon on their call to the inner bar. The third annual Bench and Bar dinner was held this year in Christchurch on 30 April. Stuart Pilkinton, President of the ACT Bar Association, attended the dinner. Conclusion This year saw the implementation of an amendment to the Rules of the Bar Association, with the election of a President-Elect. Miriam Dean QC was the successful candidate. She will take over as President on the expiration of my term as President (30 September 2010). I offer her my congratulations and my continuing support in her role. I take the opportunity, too, to thank all Bar Council members for their contribution during the past year. It is not an easy task. It is time-consuming
and, with some of the current issues, can be very demanding work. I appreciate their work and support. I want to draw particular attention to the work of our Executive Director, Monique Pearson. The recent smooth running of the Bar Association and the platform for its recent growth is in large measure due to the professionalism of Monique, and her dedication to the role. My particular thanks to her for not only her work but also her support throughout the year. Such is the growth of the work for which Monique is now responsible that we have employed Natalie Cramond on a part-time basis to assist Monique. My thanks to the administrative team for their work during the year. I extend my thanks to members generally, not in any token way, but sincerely, for the contribution which so many have made to the work of the Bar Association during the current year. Finally, I wish you all the compliments of the Christmas season and my best wishes for a prosperous new year. Colin Carruthers QC President
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Training and Continuing Education Requirements Extended Increased training and continuing education requirements for lawyers are being introduced following public criticism by Attorney-General Chris Finlayson and Justice Minister Simon Power of the standards of advocacy of some counsel. The New Zealand Law Society Board at its September meeting decided to raise to three years the experience requirement for barristers wishing to practise on their own account. That will bring barristers into line with the experience requirements for barristers and solicitors wishing to practise on their own account. The current requirement for barristers is six months, a criterion introduced only in September 2008. Prior to that, barristers were able to commence practice as barristers sole immediately after being admitted to the bar.
“Some people contend that the overall standard of the bar, and particularly the criminal bar, is not high enough in New Zealand and is the reason why there are so many delays. They say the time has come to lift standards.”
Barristers wanting approval to practise on their own account under the six month criterion must apply prior to 1 January 2010. After that, all applicants will be required to meet the three year requirement. The increased experience requirement is just one of the moves underway to improve the training and ongoing education of practitioners. Consultant and former Law Society Director of Education, Annette Black, has produced a paper for the Law Society Board titled Competency Assurance Issues.
“(T)oo many lawyers practising at the bar are incompetent or worse and there is no proper means of assessing their competence or requiring them to be properly educated. Something has to happen and this Association has to take leadership in relation to barristers.”
The document considers whether mandatory continuing legal education should be introduced. It sets out proposals and a suggested timeline for their introduction. The Law Society Board at its September meeting approved in principle the introduction of a new Competency Assurance Scheme which will include a new continuing legal education reporting requirement.
“I think those lawyers I spoke to last week are one hundred per cent correct: too many lawyers practising at the bar are incompetent or worse and there is no proper means of assessing their competence or requiring them to be properly educated. Something has to happen and this Association has to take leadership in relation to barristers.”
Mr Finlayson at the Bar Association’s annual conference said that one real pleasure for him as Attorney-General was visiting courts to speak to judges, as well as meeting with the profession. However, he said that what he was picking up was not always impressive. One recurring theme was that of counsel competence.
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Mr Finlayson said that most people regarded the professionals courses offered in New Zealand as “a joke which do not equip students properly to practise at the bar.” He said that, when he was a member of a review panel appointed to undertake a review of the IPLS course, he had tried to persuade his fellow reviewers that there was a case to be made for the introduction of something like the New York Bar exam, which would really have raised standards. However, his colleagues had felt that this was perhaps going too far.
In particular, he said, it must be ensured that – • students and young practitioners were well-trained, including in practical advocacy skills • there was an effective certification process to ensure that only those with the necessary skills could act as trial advocates
• the criminal law was sufficiently well-remunerated to attract skilled practitioners and ensure competition • practitioners were well-supported to develop and maintain their skills and to act competently • there was ongoing, mandatory, effective continuing legal education. Mr Finlayson said that the above matters were the bare basics, but he would go further. He said that he was responsible for pushing for the inclusion in the High Court Rules of a duty to co-operate. He said that the original proposal had been for a positive duty on counsel to co-operate and communicate in a responsible manner during the discovery process. “I think a positive duty on counsel to co-operate to secure the just, speedy and inexpensive determination of proceedings should be a general obligation, not simply for the discovery process.” He said that there was also a case for introducing a related duty for counsel not to undermine the procedures of the tribunal before which he or she appeared. For example, counsel should not set up a court hearing to fail or require adjournment by appointing at the eleventh hour a senior counsel with a direct conflict of interest with the assigned judge. Mr Finlayson said that he believed that things had got so bad that consideration should be given to whether the courts should have, in addition to their inherent jurisdiction, the power to order barristers to meet the whole or part of any wasted costs. Mr Finlayson said that he was conscious that his address had appeared rather bleak. However, he had enormous respect for Bar Association members and the profession could be proud of the significant contribution made by such people to the administration of justice. The Bar Association continually demonstrated the willingness of the independent bar to engage in pro bono legal work, law reform and the role of lawyers as teachers of legal and constitutional values.
Bleak Warning About Advocacy in Criminal Courts From Old Bailey’s Head Judge The future of advocacy in the criminal courts of England and Wales was bleak, said Recorder of London and judge in charge of the Old Bailey, Judge Peter Beaumont QC. He observed that criminal court advocacy, whether for the prosecution or for the defence, was publicly-funded advocacy and funds were in short supply. The question with which the independent bar needed to grapple was whether publicly-funded defence advocacy was viable at a time when moves were underway to freeze the £2 billion legal aid bill. Judge Beaumont said that, for more than 50 years, the United Kingdom had operated a system under which, the worse the crime of which a person was accused, the higher-quality the advocate provided would be. He described that as a requirement of a civilised society, but queried whether it would continue in future when there were competing funding priorities. Speaking about defence advocacy, Judge Beaumont said that case management pressures were everencroaching. The days of complete ambush defences were gone, although recent cases at the Old Bailey indicated that considerable ingenuity was being devoted to developing prepared statement outlines of defendants’ responses to what had been disclosed - and only to what had been disclosed. He said that the critical decision for defence lawyers remained whether or not to call the defendant, but the experience at the Old Bailey was that jurors liked and expected to hear from defendants. Judge Beaumont said that he believed that successful prosecutors should seek to eliminate their personalities from cases, but defence lawyers did not operate under such constraints. “The character of the advocate does play a legitimate part. There can be permissible engagement between the advocate and the jury. However, it is a narrow path along which to tread.” He said that, in the past, the United Kingdom had done nothing to train young counsel. Advocates were presumed to come to their tasks
“perfectly formed.” More training for judges had now been introduced, but training of advocates remained far more of a hit or miss matter. Judge Beaumont described it as “both amateur and certainly haphazard.” He noted that a requirement for six months’ pupillage had been introduced in 1967. There were now bar exams and the four Inns of Court provided advocacy training based on United States’ and Australian models. Training was carried out by members of the bar in the evenings and at weekends. Judge Beaumont described pupillage as a very good thing, but warned that the future of the profession should not be strangled by undue restrictions on the numbers of pupillages. He said that those undertaking pupillages were paid £20,000, meaning that most chambers could only afford four pupils. “There are literally hundreds of talented young people wishing to practise at the independent bar who cannot find pupillages, disappointing them and possibly posing a danger of bringing the profession into disrepute.”
More training for judges had now been introduced, but training of advocates remained far more of a hit or miss matter. Judge Beaumont described it as “both amateur and certainly haphazard.” Judge Beaumont was appointed a Circuit Judge in 1989 and sat initially at Chelmsford Crown Court. In 1995, he was appointed Senior Circuit Judge at the Old Bailey and from 2001 he held the post of Common Serjeant of London. He has been sitting as
an additional judge of the Court of Appeal, Criminal Division, since 1996 and in December 2004 was appointed Recorder of London. Judge Beaumont said that he was the 98th holder of the office of Recorder of London. The Recorder sat as the senior judge in the court established by the Central Criminal Court Act 1834, he said. He noted that there were 18 courts at the Old Bailey, with 16 senior circuit judges sitting there. Until recently, the Old Bailey had tried a broad range of London’s serious crimes. However, Judge Beaumont said that changes had been made two years ago and the Old Bailey now dealt primarily with homicide and terrorism cases. Every week, around 10 homicide trials would take place within its precincts. Most trials were lengthy jury trials and there were few guilty pleas. That meant that the advocacy required at the Old Bailey was that of prosecuting or defending cases in front of 12 laypeople. He observed that London’s population was now very diverse, reflecting successive waves of immigration from Pakistan, India and Sri Lanka. Crimes coming before the courts accordingly included honour killings, meaning that events having their roots in, for example, tribal Pakistan must be dealt with by a legal system developed in England. As was the case in other jurisdictions, the courts were also having to grapple with the problems raised by jurors seeking information on the internet. Judge Beaumont said that prosecution advocacy at the Old Bailey was largely carried out by the Treasury Counsel team, an institution unique to the court. He described Treasury Counsel as providing a “Rolls Royce” prosecution service. Treasury Counsel teams generally consisted of a First Senior Treasury Counsel, a small team of Senior Treasury Counsel, a First Junior Treasury Counsel and several Junior Treasury Counsel. Team members were appointed for specific terms and worked together in a large room, which fostered camaraderie. Judge Beaumont said that this meant continued over...
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Bleak Warning About Advocacy in Criminal Courts From Old Bailey’s Head Judge continued that team members were available to appear for one another at short notice, as well as leading to the development of a “House style.” Judge Beaumont was appointed to the Sentencing Guidelines Council in 2008 and has been reappointed to continue serving on the council until 2011. The Sentencing Guidelines Council was established to issue sentencing guidelines to assist all courts in England and Wales, as a means of encouraging consistent sentencing. Prior to the creation of the council, sentencing and allocation guidelines were developed by the Court of Appeal and the Magistrates’ Association. The council aims to provide a strong lead on the approach to allocation and sentencing issues based on a principled approach which commands general support, as well as enabling sentencers to make decisions on sentencing that are supported by information about the effectiveness of
sentences and the most efficient use of resources. The council published its first set of draft guidelines in September 2004 and has issued a range of guidelines since then. These include guidelines for sentencing on burglary in a dwelling, assault and other offences against the person, assaults on children and cruelty to a child, sexual offences, reductions in sentences for guilty pleas and breaches of protection orders. When the council released its guidelines for judges and magistrates sentencing on theft and burglary (nondwelling) in December 2008, Judge Beaumont said that the guideline recognised that many offenders who committed acquisitive crimes were motivated by addictions. He said that this did not make the offence any less serious, but it might be relevant to the choice of sentence.
or a community sentence linked to a requirement to participate in a drug or alcohol treatment programme. Our emphasis is that this approach may be appropriate in order to break the cycle of addiction and offending – a result which would benefit the community.” In New Zealand, the previous Labour Government decided in 2007 to establish a Sentencing Council, based on the English model, to draft sentencing guidelines. However, the National Government cancelled the plans for a New Zealand council as it does not support the concept of a non-judicial body fixing sentencing guidelines. The Court of Appeal accordingly resolved in 2009 that it would resume its programme of preparing guideline judgments. In October, it issued a judgment setting out guidelines on discounts for guilty pleas.
“In particular, the court might decide to give a suspended custodial sentence
UK Tackles Reform of Civil Case Costs Detailed proposals for reform of the rules relating to costs in civil cases in the United Kingdom are due to be presented shortly, when Lord Justice Jackson produces his final report for Master of the Rolls, Sir Anthony Clarke. Sir Rupert was appointed in December 2008 to lead a comprehensive review of the rules and principles governing the costs of civil litigation and to make recommendations for promoting access to justice at proportionate cost. The review, which is the biggest inquiry into civil costs since Lord Woolf’s review 15 years ago, began in January 2009. The terms of reference for the review require Sir Rupert to – • establish how present costs rules operate and how they impact on the behaviour both of parties and of lawyers
• ascertain the impact of case management procedures on costs and consider whether changes in procedures could bring about more proportionate costs • have regard to previous and current research into costs and funding issues • seek the views of judges, practitioners, the government, court users and other interested parties both through informal consultation and through a series of public seminars • compare the costs regime for England and Wales with those operating in other jurisdictions • prepare a report setting out recommendations with supporting evidence by 31 December 2009. A comprehensive preliminary report comprising more than 650 pages
was published on 8 May 2009. Submissions were invited by 31 July and seminars were held in Cardiff, Birmingham, London and Manchester to discuss issues relating to the review. Sir Rupert in the foreword to his preliminary report said that the facts set out in the document were not intended to support any particular conclusion. Rather, he hoped to ascertain with the assistance of those consulted where the facts led. He stressed that he had not formed final views on any topics. Sir Rupert described the issues under review as both complex and intractable, observing that there were no simple answers and the facts were not straightforward. The review comes a decade after the implementation of the Woolf reforms, which aimed to address the problems of costs and delays in civil cases continued over...
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Pre-action protocols and the requirements of the Civil Procedure Rules have resulted in the front-loading of costs. Further, the detailed requirements of the rules and the cases management orders of courts cause parties to incur costs which would not previously have been incurred. in the United Kingdom. Sweeping reforms to civil courts processes were introduced in 1999, including new civil procedure rules and a heavy emphasis on judicial case management. The aim of the changes was to create a less adversarial litigation culture, ensure that more matters were dealt with on the papers and promote the use of alternative dispute resolution. However, Dame Hazel Genn, the Dean of Law, Professor of SocioLegal Studies and co-director of the Centre for Empirical Legal Studies at University College London’s Faculty of Laws, said that, although settlements were now occurring earlier, costs were being front-loaded and had in fact increased. Dame Hazel visited New Zealand in September and spoke at the New Zealand Bar Association/ Legal Research Foundation seminar Civil Litigation in Crisis – Beyond the Crisis? Sir Rupert’s preliminary report compares the United Kingdom rules with those in nine other jurisdictions, including New Zealand, Scotland and Germany. The introduction to the document states that, despite the general success of the Woolf reforms, the costs of civil litigation have continued to rise. The paper says that
this can in no small part be attributed to the introduction of conditional fee agreements and the reforms to such agreements effected by the Access to Justice Act 1999. Sir Rupert notes that these two developments were not based on recommendations in the Woolf report, but rather were consequential on the retraction of legal aid and the government’s search for alternative means of funding litigation.
• Cost shifting – should the rule be modified to introduce one way cost shifting or to move from full cost shifting to partial cost shifting?
Despite that, the paper says that it must be accepted that some of the cost increases since 1999 do appear to be a result of the reforms. Preaction protocols and the requirements of the Civil Procedure Rules have resulted in the front-loading of costs. Further, the detailed requirements of the rules and the cases management orders of courts cause parties to incur costs which would not previously have been incurred.
• “Heavy” litigation – costs in complex civil litigation may be very substantial. Should the full “Rolls Royce” service be delivered regardless of cost, or should the amount of investigation undertaken in the course of such litigation be commensurate with the sums in issue between the parties?
The document states that, over the past decade, there has been mounting concern about the cost of civil justice. Liability insurers have maintained that the costs payable to claimant lawyers are becoming ever more disproportionate to the damages paid to claimants. The media have expressed anxiety about the escalating costs of defamation and related litigation and there has been an explosion of litigation about costs issues. Sir Rupert concludes Chapter 1 of his preliminary report by stating that the issue of costs is one which generates deeply-held and fundamentally opposed opinions. “It is an issue of obvious public importance and one which touches upon a number of vested interests. In the last four months I have been caught up in a maelstrom of conflicting arguments. Indeed, in comparison with the present Costs Review, the design and construction of the Tower of Babel seems to have been quite a harmonious and straightforward project. Whatever I may recommend at the end of this year, one thing is inevitable, my final report will generate protest from at least some direction and quite possibly from all directions.” Chapter 2 of the document highlights seven fundamental questions arising from the preliminary report. These are the following –
• Fixed costs – should the existing range of fixed costs be extended? • Personal injuries – should claimants receive damages free from any deductions for costs and can the costs of relatively straightforward personal injury claims be reduced?
• Recoverability of additional liabilities – should success fees and after the event insurance premiums continue to be recoverable under costs orders and, if so, should there be restrictions? • Assessment of costs – are changes required to the detailed assessment and summary assessment procedures? • Funding and access to justice – how can funding mechanisms and costs rules operate to promote access to justice? Other issues canvassed in the paper include whether or not contingency fees should be introduced, and whether or not some form of conditional legal aid fund for civil claims should be reintroduced. Although the report stresses that no firm views have yet been reached, Chapter 22 is an exception to that. Sir Rupert notes that the Woolf report recommended a system of fixed recoverable costs for all cases allocated to new fast track. He observes that the proposal was controversial at the time, but says that it is the unanimous view of him and his panel of assessors that a fixed costs system for fast track cases should now be implemented. The chapter accordingly goes on to set out detailed proposals for such a regime. It is suggested that there would be fixed costs for cases of different types and at different stages of the fast track process. The chapter concludes that Lord Woolf’s original concept of a fast track system with fixed costs now needs urgent attention.
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NZBA Annual Conference The Bar Association’s annual conference was held in Wellington in September. The theme of the conference was Advocacy and Courtroom Practice – The Duties of Counsel. The day was broken into five sessions – • Counsel’s duty to co-operate – Achieving efficiency and fairness in litigation • Advocacy in 2009 from the perspective of the judge in charge of the Old Bailey • The impact of the Evidence Act 2006 on criminal and civil proceedings two years on • The future of the written brief • Class actions and litigation funding. Attorney-General Chris Finlayson opened the conference, speaking about advocacy and then launching the Bar Association’s Equitable Briefing Policy (see separate stories about both these issues in this newsletter). The topic of Advocacy in 2009 was then addressed by the Old Bailey’s senior judge, Peter Beaumont QC ( see separate story). The impact of the Evidence Act 2006 on criminal and civil proceedings was considered in the third session. Court of Appeal judge, Justice David Baragwanath, said that the act had been largely intended as a codification of common law principles. However, as with the Bill of Rights, the codification had inevitably led to a welter of decided cases, most of them in the criminal sphere. He said that there had been some tendency to let narrow, black letter considerations to distract from the underlying principles, a trend which he believed should be resisted. Justice Baragwanath said that legitimate concerns about cost and delay in litigation existed in the evidential sphere as well as in relation to procedure. “The recent fast track initiatives in New Zealand and Australia point to the need to lubricate the evidential element of adjectival law. Though designed to provide access to the community, the Evidence Act is in reality both a working kit for experts and (as section 202 recognises) a work in progress. The function of bar and bench remains as it was at common law – to deliver justice to one’s client and to the parties. That requires all of
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us to exercise imagination, judgment and vigour both to make full use of its potential and to identify and do what is needed to rectify its deficiencies.” Barrister James Farmer QC said that commercial litigation was inherently complex and both the complexity and the cost tended to increase proportionately to the legal resources applied to the litigation. He called for both judges and lawyers to focus on ensuring that litigation was conducted in a restrained and focused fashion. Essential to that end was adherence to pleaded issues, rigorous application of the rules of evidence and greater restraints on the excessive and inappropriate use of expert witnesses. Dr Farmer said that the new Evidence Act provided an opportunity for striking out in the correct direction in these respects.
Ms McCartney said that it would be a welcome help to the overall process if courts were more prepared to intervene when counsel had not complied with ethical and evidential requirements in the preparation of briefs of evidence. He said that it was his view that the legislation could prove highly beneficial because it provided a single reference source by which the admissibility and quality of evidence could be tested. By contrast, previous practice in civil and commercial cases, in particular, had been characterised by inconsistency of application of the rules of evidence and a substantial degree of ignorance of what those rules were. Barrister Peter Davey observed that the new act had created a plethora of cases in the two years in which it had been in force. It had had a significant impact on the rules of evidence, resulting in practical consequences for both criminal and civil proceedings. Section 35, which related to previous consistent statements, had been one of the most litigated sections. High Court Judge and Rules Committee chair, Justice John Fogarty,
opened the session on the future of the written brief. He said that there had been considerable concern expressed around New Zealand about the current use of written briefs. The Civil Litigation in Crisis – What Crisis? conference in February 2008 and disquiet expressed at the annual meeting of High Court Judges had provided the sense that the committee had a mandate for reform. The committee was at present seeking submissions on its second consultation paper on changes to the High Court Rules relating to written briefs. Justice Fogarty said that trial judges in some cases had a sense that written briefs came between them and the witness, and that they could in fact be counter-productive. He said that, sometimes, the more crafted the brief was, the more frustrated judges became when they sought to grapple with what had actually occurred. Justice Fogarty said that the best submission received on the issue during the first round of consultation had been the Bar Association’s submission, which had faced up to the fact that there was a division between the bench and the bar about written briefs. He said that the Rules required amendment, but there also needed to be a change in culture both from the bench and from the bar. “Ultimately you are trying to persuade a judge so you should present material which is going to be persuasive, and often written briefs are not.” Barrister Jan McCartney SC, in a written paper delivered by barrister Pam Davidson, said that she favoured the written brief as the principal means by which evidence-in-chief was presented at civil trials. However, she said that, in the pre-trial phase, there should be better consultation between counsel and the judge to determine whether issues at trial might be assisted by oral evidence-in-chief. In the event of an impasse, she said that the trial judge should be given an overriding discretion. Ms McCartney suggested that concerns about the costs of preparing extensive briefs of evidence could largely be met by ensuring that timetables provided for settlement conferences prior to intensive preparation and exchange of briefs of evidence. She said that the proposed
new Rules provided a welcome balance. Continued use of written briefs in civil trials would retain their acknowledged advantages, while greater flexibility for allowing oral evidence would also be beneficial. Ms McCartney said that it would be a welcome help to the overall process if courts were more prepared to intervene when counsel had not complied with ethical and evidential requirements in the preparation of briefs of evidence. Barrister Justin Smith said that the changes proposed in the latest version of the Rules Committee’s consultation paper on written briefs would largely preserve their advantages, while limiting some of the problems. He supported the retention of written briefs with changes of the type proposed. However, he suggested that trial judges should be given a broader discretion to require evidence tendered by written brief to be given orally.
The final session of the conference considered class actions and litigation funding. Barrister Stephen Mills QC said that New Zealand-based litigation funding firms were emerging at present. Funding had not been limited to class actions, and both individual and small groups of plaintiffs had used litigation funders. He observed that litigation funding agreements immediately raised issues of maintenance and champerty. However, the real issue appeared to be whether the funding arrangements were an abuse of the court’s processes. Access to justice concerns had led a number of jurisdictions to abolish maintenance and champerty as litigation funders came to be regarded as the answer to a number of problems. Mr Mills concluded that the necessity for litigation funding to be accepted in New Zealand if class actions were to be used – as opposed simply to being
available – made a convincing cases for litigation funding being dealt with as part of a Class Actions Bill. However, the issues were wider than class actions and he said that he agreed with the view of the Chief Justice that the broader issues needed to be addressed directly. Barristers Mary Peters and Philip Skelton in their paper said that it was likely that the High Court Rules would soon include an “opt-out” class action procedure, in addition to the current “opt-in” process. They said that there were sound policy reasons for the introduction of such a regime. The concerns which had been raised about such a procedure did not appear to have been realised in Australia. Even if they did eventuate, none would appear to be of a nature which could not be addressed in future amendments either to the High Court Rules or to the Rules of Conduct and Client Care.
A special thanks to our sponsors:
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Introducing Our New Junior Barristers’ Representative – Toby Futter to ensure that young practitioners have access to the guidance and instruction necessary to prevent such lapses (or at least to lessen them). New Zealand’s independent bar should present a vibrant, dynamic, and accessible opportunity to those seeking to join it at an early stage in their legal career, and its juniors should enhance rather than detract from the eminence afforded it by its senior members.
I’m grateful to have the chance to serve as this year’s junior barristers’ representative on the Bar Association’s Executive Council. It’s an exciting time to be a junior member of the profession, and with so many issues affecting us currently under discussion, it is important for our views to be heard. Foremost perhaps is the impending increase to the minimum time-inpractice component for those seeking to practice as a barrister sole. The current regulations require only six months’ experience, however draft regulations recently offered to the Bar Association for review suggest this will soon be raised. The proposal is to bring the requirements for barristers into line with three year requirement imposed upon solicitors seeking to practice on their own account (although subject to several exceptions). The change raises a difficult question: How “junior” is too junior to be a barrister? While the Law Society has a discretion to reduce the three year requirement to as little as one, recent criticism from several quarters (including the Attorney General’s office) has suggested that standards in the profession are too low – and worse, that it is often junior members responsible for setting them there. Such criticism concerns the Bar Association deeply. Given that it reflects upon the profession as a whole, it should concern us all. Part of my role this year will be to assist the Bar Council to build upon recent training and education initiatives
To that end, the Bar Association’s training programme for 2010 is again likely to feature the hugely popular Take the Lead and Shape Your Future seminar. The event will provide specific and practical advice from some of our most experienced practitioners, and will again be offered in several major centres to junior barristers and litigators alike. Further training proposals currently under consideration for 2010 include a seminar addressing some of the practicalities of establishing and developing a barristerial practice, sessions on leading and crossexamining evidence and the effective use of interlocutory applications, and a clinic on criminal advocacy. These events are of course intended to be of maximum benefit and interest to the Bar Association’s members; if you have a topic that you think is crying out for attention, please get in touch. Another proposal intended to directly benefit junior members is an upgrade of the Bar Association’s website. The site at www.nzbar.org.nz currently features a wealth of information for members, but the plan – with your input and assistance – is to develop a specific subsection to serve as a “resource centre” for juniors. The goal is to create a homepage rich in content and contacts, tailored specifically to junior members’ professional needs. Your bright ideas, suggestions and comments are welcomed.
jurisdictions have active junior associations, and where possible I’ll let you know about events of interest
“New Zealand’s independent bar should present a vibrant, dynamic, and accessible opportunity to those seeking to join it at an early stage in their legal career” overseas (particularly those offering funding), as well as competitions and scholarships for which New Zealanders are eligible. Lastly, I can advise that 2010 will see more of the junior barristers’ functions many of us have attended in the past. These are an excellent chance to mingle with senior members of the profession and the judiciary, network with associates from Crown Law, the Government Ministries, the Crown warrant firms and the Courts, and to catch up with fellow jubes in practice. Dates will be advised shortly, and I’ll be in touch with details and invitations throughout the year. The Bar Association is committed to encouraging and developing the growth of its junior members. If you’d like to know more, or have comments or suggestions on anything you’ve read above, please don’t hesitate to contact me. I look forward to meeting you. p: 09 308 0516, e: toby@futter.co.nz
This column will also feature news and information on international developments and events. Several foreign
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Members Benefits Update NZBA Insurance Plan The Bar Council and Marsh are delighted to advise that there has been an overwhelming response to the new NZBA Insurance Plan and would like to thank those members who have shown their support. If your policy is due for renewal in the next few months then please contact Marsh to advise them of your renewal date. This will allow Marsh to proactively contact you prior to your renewal with the appropriate information. Please email your details of your renewal date to nzba.nz@marsh.com The NZBA Insurance Plan proposal form and policy wording is available for downloading in the members’ area of the Bar Association’s website www.nzbar.org.nz If you have any questions about the NZBA Insurance Plan please contact Liam Pomfret at Marsh on (09) 366 9288. NZBA Member Benefits Portfolio The NZBA Member Benefits Portfolio continues to grow with the addition of Ricoh New Zealand Ltd. From reconditioned photocopy machines to the latest technology in printing, copying, scanning, processing and archiving, call Ricoh on 0800 274 264. Their cost recovery software makes it simple to accurately account for copies and prints. Attention All Cardplus Fuel Card Users CardPlus is pleased to bring members this special offer on a Cardplus Shell Fuelcard. Apply today and start making significant fuel savings! • Special 3 month introductory offer of 6 cents a litre discount off the pump price, plus double Fly Buys points • After 3 month introductory period receive 5 cents a litre discount off the pump price, plus Fly Buys points • 6 months FREE weekly delivery of Sunday Star Times valued at $57 • Can have multiple cards linked to the one account • Secure PIN access • Up to 35 free days credit • No transaction fees • Only cost is $2 a month card fee (inclusive GST) • Cardplus Shell Fuelcard is available to both consumers and businesses - so your work colleagues and family can take advantage of this great offer! Please go to www.cardplus.co.nz and click on NZ Bar Association to print out your Fuelcard application form.
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Litigation Skills Scholarship Recipients Nick Silich completed an LLB at
the University of Auckland before beginning practice in 2006 working for senior Auckland barrister Mark Edgar. In 2007 he commenced practice at the independent bar and specialises in criminal law and youth advocacy. I would like to express my gratitude to the New Zealand Bar Association for awarding me one of the scholarships to attend the New Zealand Law Society Litigation Skills Course.
My average week comprises about two days in the Disputes Tribunal as a referee and the rest of the week I practice the majority of time in criminal law. For several years I had been told about the course and advised to attend it, but life circumstances made it difficult to attend. If it had not been the opportunity from the New Zealand Bar Association I would have remained in the dark.
I had heard from previous attendees that the course is as arduous as it is intensive. I found that to be an accurate if somewhat understated view. The course was run with military precision, and all credit must be given to the course organisers.
I was blown away by the calibre of the faulty and how they sacrificed their time to help others. The majority were leading advocates in New Zealand which included an abundance of Queen’s Counsel. I had trouble convincing myself they were there, but they were, and the participants were all the better for it.
I would describe the course as a “barristers’ boot camp”. The litigation skills are drilled into attendees, critiqued (with brutal honesty), and drilled again until the skill is finely honed.
I will have lasting memories of Justice John Hansen and his words of wisdom. The impact had an effect on me that has also elevated my view towards the Law Society and my colleagues.
I felt privileged to be taught the skills of a barrister by a faculty that comprised some of the best legal minds in this country. They were generous in the giving of their knowledge and offered ongoing advice after the course was concluded.
It was a gathering which I thought did not exist. I will also remember the course director, Susan Hughes QC, and her advice that the profession should help each other so that we can raise the standard.
The course is essential for any lawyer intending to practice in the litigation field. I came out of the course with the confidence and skills to manage a criminal trial on my own. Nick works from Waitemata Chambers in Henderson, Auckland. His contact details are: Waitemata Chambers, 6 Alderman Drive, Henderson. PO Box 33379, Takapuna, Auckland. Telephone: (09) 413 5130, Fax: (09) 838 3252, Mobile: 027 547 5474. After a 15-year Police career and after a period of other career hopping Brian Webby later obtained a LLB and LLM from Waikato and, after working for two law firms, became a barrister sole in 2004.
I am indebted to the New Zealand Bar Association for the opportunity. Brian Webby can be contacted at P O Box 7393 Napier. Telephone: (06) 874 3337, Fax: (06) 876 3338, Mobile: 027 255 3376
Advertorial
Face Facts by Callum Mills of Ideal Systems The pre-eminent social networking site Facebook was founded in 2004 by ex Harvard student Mark Zuckerman as a student’s social networking site. Facebook is now the largest global social networking site after overtaking myspace earlier this year with a quite incredible 350 million active users (this is measured as users who have returned to the site in the past 30 days).
an interest group and letting people join the group which you control. For example if you had created a group called ‘How do all these groups know all about the weird little things that I do’, you would by now have more than 200,000 fans who read your every word. Or the interestingly named ‘I have joined way too many groups’ group, enjoys a membership of more than 190,000 fans.
The typical new user is of course someone just like you, professional and over 35. Having captured the youth market some years ago we are increasingly being pressured by marketing, our children and younger friends to join up. Our favourite bands, films, actors, authors, radio stations, television programs and restaurants all have facebook pages which you can join as a fan.
It is in groups, and allowing people access to your data, that problems arise, and this can cause potentially serious security issues.
To those under 25 it would be quite incredible that someone who has internet access would not voluntarily have a facebook page and assiduously keep it up to date. What on earth would be the harm in just signing up, what harm indeed. For those that have not enjoyed the rigours of facebook, the system allows each user to populate a predefined template with information about themselves and their families, their work, likes and dislikes, photo albums and to join special interest groups. You can hold conversation threads which one or many people can join. The public profile contains much of this information and in this case public really can mean public.
For example a user in London when setting up her account, allowed access to her photographs and information to the inconspicuously named ‘London Network’ group. Unfortunately the London Network group has more than 200,000,000 members and the lady in question was Lady Sawyer, the wife of the head of the UK’s Mi6 organisation. Details of the couple and their children, including photographs and domestic addresses were published. Questions were indeed asked in the house. Late last year, a juror was dismissed from a U.K. trial after sharing details of the case on her facebook profile. Apparently unable to decide upon the guilt or innocence of defendants in a child abduction and assault case, she made the decision to request the help of her friends and family via the social networking site. “I don’t know which way to go, so I’m holding a poll,” the erstwhile juror wrote. She was quickly removed from the jury, following an anonymous tip-off to court officials.
A facebook page can be a useful tool to keep in touch with friends and family and to generate business. But one must exercise a reasonable degree of caution: • Never write something on a facebook page that you would not write in an email or letter. • Always assume that people you don’t know will have access to your photographs and data. • Never unthinkingly accept people as friends, check this is an individual not a group, check that you are happy acknowledging this person. • Never join a group that you would not want your peers to know about. • Never ever upload embarrassing photographs. • Always remember that from the public view anyone can see your likes and dislikes, people have been fired and prosecuted for public view content. • As always, never ever disclose your password. This author of this article is Callum Mills, Director of Ideal Systems. He can be contacted via facebook but will probably not accept your ‘add a friend’ invitation. But seriously, Callum would be happy to personally answer any IT questions that you may have, please send them to callum@ideal-systems.co.nz or visit his website at www.ideal-systems.co.nz. Safe Surfing.
Now that all sounds fairly simple, and with the easy to use security you can quickly identify who you want to have access to your data but not to your public profile. Once you are all set up you simply send out invites to friends that you want to keep in touch with and they can leave or answer messages on your facebook page, look at your photographs and interface with you in this electronic world. Sometimes this is simply the only way to keep in touch with older children, especially when they are of on their OE or working and living in a remote location. You can also use facebook to subtly advertise your business and skills and generate real revenue by creating
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BAR CHAT Announcements
New NZBA Members
The New Zealand Bar Association extends its congratulations to Bar Association member, Jonathan Temm, on his election as the next President of the New Zealand Law Society. Jonathan takes over the presidency next April from John Marshall QC, who will then have held office for three years.
The Bar Association welcomes the following new members to the independent bar and/or the Association:
The Bar Association offers its warm congratulations to the following members:
CHRISTCHURCH: Jonathan Everist
• The Right Honourable Sir Edmund Thomas KNZM QC: awarded a Doctorate of Laws degree by the University of Victoria in recognition of his contribution to jurisprudence. The award will be conferred at Victoria’s graduation ceremony in December. • The Honourable Justice Tony Randerson: appointed as a Judge of the Court of Appeal, effective 1 February 2010. • The Honourable Justice Helen Winkelmann: who replaces Justice Randerson as Chief High Court Judge. • The Honourable Justice Rebecca Ellis: appointed to the High Court on 1 November 2009.
NZBA Council meetings and events Members should feel free to contact any of the Bar Council members – or the Bar Association – with any matters they would like raised on their behalf at future Bar Council meetings.
AUCKLAND/ NORTHLAND:
David Marriott; Peter Craighead; Mark Donovan; Moira Green; Jason Goodall
WELLINGTON:
Bernard Robertson
OTAGO:
Benjamin Nevell
WAIKATO/ Micah Tawhara; James Hope BAY OF PLENTY: AUSTRALIA:
John Pappas
Thank you The Bar Council would like to acknowledge its appreciation of those members of the Bar Association who have assisted it this past year in preparing submissions to the Rules Committee and other similar bodies on various and proposed rules and regulations. Those members who are interested in assisting a particular committee should contact the Executive Director, Monique Pearson, at nzbar@nzbar.org.nz
Bar Association Christmas Closure Please note that the Bar Association’s office will be closed from noon on Wednesday, 23 December until Monday, 18 January 2010.
2010 Council Meetings and Events DATE
EVENT
VENUE
04 March
Council Meeting
Christchurch
22 April
Council Meeting followed by Bench and Bar dinner
Auckland
24 June
Council Meeting
Video Conference
05 August
Council Meeting
Dunedin
07 October
Council Meeting
Hamilton
02 December
Council Meeting
Auckland
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WHAT MEMBERS NEED TO KNOW New Rules for New Barristers From 1 January 2010, a lawyer wishing to commence practice as a barrister sole will need to have three years’ prior legal experience. If you wish to apply under the current six-month requirement, your application must be received by the New Zealand Law Society no later than 31 December 2009. If your application is received by this date, it will be considered under the current provisions. You will need to provide evidence, in the form of a supporting letter from your supervisor(s) that you have (or will have by 31 December 2009) the requisite legal experience. Holding a practising certificate does not necessarily equate to having the required legal experience. The Law Society national office will close on 24 December 2009 and not reopen until 11 January 2010. You should ensure that you have mailed your application to the Law Society before 24 December 2009.
given to the defendant, the defendant’s counsel and the prosecutor. (Previously, the Notice of Bail only went to the defendant.) • For cases that qualify for middle band consideration, the middle band form will be issued at the same time the Notice of Bail is sent to the defendant’s counsel and the prosecutor. The middle band form will inform the prosecution and the defence that they have 14 days to return the form to the High Court. (This differs from the 21 days used previously). • The 14-day time frame to return the form commences the day after the case is committed for trial. For example, if a case is committed on the 12th of the month, counsel have until the end of the 26th day of the month to return the form to the High Court. • The middle band form will advise counsel that if it is not received by the High Court within the 14-day time frame, a decision may be made without their input.
Further information is available from the New Zealand Law Society Registry on 0800 22 30 30.
Seminar Report: Civil Litigation - Beyond the Crisis?
Report on Barristers’ Training
In February 2008 the New Zealand Bar Association and Legal Research Foundation jointly held the very successful conference Civil Litigation in Crisis – What Crisis? That conference generated numerous suggestions for improvement of the civil litigation system.
Members can view a copy of the Bar Council’s paper to the Law Society dated 18 September 2009 on the subject of barristers’ training by logging onto the members’ area of the Bar Association’s website – www.nzbar.org.nz. The document is filed under the heading “discussion papers and submissions”.
Middle Band Process Changes The process for managing trial cases that qualify for middle banding – relating to criminal trials that may be held in either the District Court or the High Court – has changed, effective from 2 November. In light of the changes instituted by the Summary Proceedings Amendment Act (No 2) 2008, the Chief High Court Judge, Justice Randerson, and the Chief District Court Judge, Judge Johnson, have agreed on a new process. It is: • Section 184T(1)(c) of the Summary Proceedings Act stipulates that the Registrar of the District Court that has committed the defendant for trial must ensure that notice of the defendant’s committal and notice of bail are
The follow-up seminar Civil Litigation – Beyond the Crisis? held jointly with the New Zealand Bar Association, Legal Research Foundation and University of Otago Legal Issues Centre focussed on: • International experience with access to justice issues and the lessons we can learn from overseas reform; • The preliminary results of a recent survey by Otago University’s Legal Issues Centre about New Zealand’s civil court system; and • Changes to New Zealand civil procedure – including the introduction of a fast track, changes to the written brief’s regime, proposed discovery reforms and debate about further reform. The seminar report can be found on the “Conference Papers” page of the members’ area section of the Bar Association’s website.
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INTERNATIONAL NEWS AND EVENTS American Bar Association Section of International Law: ILEX – Australian and New Zealand visit 7 to 12 February 2010
UK making this a perfect option for international and/or working practitioners.
In conjunction with the February 2010 International Legal Exchange (ILEX) Briefing Trip to Australia and New Zealand, the Section is organising a one-day conference on 9 February in Sydney followed by a visit to Auckland on 11 and 12 February.
To book on-line: http://www.college-of-law.co.uk/ prospective-students/llm-international-how-to-book.html
The proposed format for Auckland is a reception on 11 February at Chapman Tripp and a roundtable discussion with representatives from the judiciary, Bar Association, Law Society and University of Auckland Law School Dean on 12 February at DLA Philips Fox. Each year, the Section holds an ILEX programme to increase interchange between international lawyers, and for the Section members to learn more about international legal issues. Details of the Auckland reception and roundtable discussion will be posted to the Bar Association’s website – www.nzbar.org.nz If members wish to find out more about the Sydney one-day conference, please visit the Bar Association’s website – www.nzbar.org.nz
LL.M in International Legal Practice The next intake for the highly successful LL.M in International Legal Practice is January 2010 Jointly created by the International Bar Association (IBA) and The College of Law, the LL.M in International Legal Practice is an internationally-recognised professional qualification designed to build corporate and cross-border legal knowledge to enhance your legal career. The Masters in International Legal Practice is designed to give practitioners the practical skills and knowledge to achieve new professional goals. It is designed in conjunction with leading global law firms and reflects a progressive approach to legal practice. There are a wide range of specialist modules available so practitioners can build their own programme. There is no requirement to attend face-to-face training in the
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For the latest news on the programme and much more please visit http://www.college-of-law.co.uk/llm-enewsletter/autumn-09/welcome.html
To book off-line: 1. Print off a copy of the booking form at http://www. college-of-law.co.uk/uploadedFiles/core/Assets/llm_ booking_form.pdf 2. Complete the booking form in BLOCK CAPITALS 3. Return the form along with your credit card details to: The College of Law, Customer Contact Centre (LL.M), Braboeuf Manor, Portsmouth Road, Guildford, Surrey, GU3 1HA, United Kingdom
The World Bar Conference Sydney, 1 – 5 April 2010 The 5th World Bar Conference will be held in Sydney, between Thursday, 1 April and Monday, 5 April 2010. The conference theme will be “The New Legal Challenges: Global Warming and Financial Freeze”. It will commence with a reception at Opera Point of the Sydney Opera House overlooking Sydney Harbour. The business sessions will be held in the ballroom of the Sheraton on the Park Hotel, Sydney and will be conducted on Saturday, 3rd and Sunday, 4th April. To find out more visit www.worldbaronline.com/images/ stories/conferences/Sydney2010/world_bar_conf_ brochure.pdf
The 15th MundiAvocat Football World Cup for Lawyers Turkey 2010 The 2010 World Football Cup for Lawyers will be held in Antalya, Turkey, from 26 May to 6 June 2010. If you are interested in registering, please visit www.mundiavocat.com to download registration forms and view sports schedules, regulations, accommodation options and more.
International Bar Association (IBA) Conference Madrid: 4 to 10 October 2009 By Clive Elliott, New Zealand Bar Association IBA Liaison With over 5000 delegates the 2009 Madrid conference was the largest IBA conference yet. The conference was opened by His Majesty, The King of Spain, King Juan Carlos I.
which included the New Zealand Bar Association and the New Zealand Law Society. The award, presented by IBA President, Fernando Peláez-Pier, was in recognition of his leadership and
years ago, which arose before the Court of Session in Scotland on a technical question of Scots law. The opinion was given to his colleague James Boswell who, unlike Johnson, was an advocate at the Scots Bar. A record of this genuinely thoughtprovoking and important speech is available online on the IBA website at http://www.ibanet.org/Article/Detail. aspx?ArticleUid=953F5E69-22294928-9F30-DC0D36D4BC42 For those who do not get a chance to read the full address, here is segment of His Lordship’s powerful conclusion:
HM King Juan Carlos I, shakes hands with IBA’ s Executive Director, Mark Ellis. Photograph provided courtesy of Alicia Barrera.
The keynote speaker was Quentin Peel, International Affairs Editor of the Financial Times, who spoke about the challenges of the current financial crisis and looked ahead to hopefully better times.
Quentin Peel, the International Affairs Editor, Financial Times, delivers his speech to delegates and the King and distinguished guests listen intently. Photograph provided courtesy of Alicia Barrera
One of the highlights of the conference was when Morgan Tsvangirai, the Prime Minister of Zimbabwe, addressed the Legal Practice Division lunch meeting. He explained to the audience why he had decided to share power with Robert Mugabe and pointed to what the coalition government had achieved so far, and why in his view the rule of law was so important. Morgan Tsvangirai also received an award from the IBA Council with representatives of over 100 national bar associations and law societies,
personal struggle to secure the rule of law in Zimbabwe. Mr. Tsvangirai, in accepting the award said: “I am merely the voice of millions of Zimbabweans that held on to an idea for ten years; to restore dignity to Zimbabwe, to restore security to Zimbabwe and to restore hope. I am sure that we are not far off giving Zimbabweans the hope they expect and deserve. This award recognises the efforts, the resilience and the determination of the people of Zimbabwe to fight for freedom and to fight for democracy.” Another highlight was when Gerry McCann, the father of Madeleine McCann, the young girl missing in Portugal, spoke about his sometimes bitter experience with the media and media law over the past two years, observing that if he had obtained legal advice sooner he would have been far better off. Evidently the session was an excellent one with real tension and the expression of heartfelt feelings. Finally, in terms of highlights, Lord Bingham, former Senior Law Lord in the House of Lords spoke at a Rule of Law Symposium. He outlined what he considered constituted the principles of a functional and effective rule of law, basing his address around a masterful opinion given by Doctor Johnson (a non-lawyer as it happened) over 200
“We have had to live through times in which fear, in the old phrase, has stalked the land. But it is, I suggest, in times like these, that the Rule of Law becomes not just important, but fundamental. We live in a world divided by race, language, wealth, religion, political opinion, and so on, but the core principles of the Rule of Law unite more of us, probably, than any other single set of principles. It’s the nearest, I suggest, we can get to a universal secular opinion than religion. And it’s something of which I think we, as lawyers, are entitled to regard with pride, because it means that our vocation is not just a way of earning a living, although of course, it is that, and often a rather good living. But it does actually mean that we are by maintaining and fighting for the Rule of the Law, contributing to the peace and civilisation of the world.” Given the wide and diverse array of working sessions and events (over 200 working sessions alone) this is just a small snapshot of some of the more memorable moments at the Madrid conference. I commend the IBA to practitioners interested in expanding their horizons. There can be no doubt that the IBA promotes contacts and interchange between lawyers throughout the world. It also provides a forum for the dissemination of specialist information on all areas of the law. Next year’s conference is on 3 - 8 October, in Vancouver, Canada, which should make it more accessible to many New Zealand practitioners.
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2008-2009 Council contact details
NZBA Council Summary of Meeting Minutes The Minutes of the Council Meeting of the New Zealand Bar Association held at 3:30pm on Friday, 11 September 2009 at the Holiday Inn, Wellington. Mr Carruthers reported on the situation in Fiji and the Bar Council discussed how the Bar Association could provide practical assistance to Fijian lawyers. Mr Johnston reported that the Bar Association’s finances were in a satisfactory position. In terms of financial planning, he noted the perennial problem of members not paying dues which made it difficult to accurately forecast Bar Association activities, in particular, training and scholarship awards. Mr Carruthers suggested to the Vice-Presidents that they arrange social events in their territory as an opportunity to engage with members. Mr Carruthers also encouraged VicePresidents to invite members in their region to submit their views on issues they would like the Bar Council to address and focus on in the upcoming 12-month period. Mrs Pearson reported on the Bar Association’s IBA membership status upgrade from sustaining member (non-voting) to full voting Council member, which the Bar Council viewed as a positive step. She advised that Clive Elliott would represent the Bar Association at this year’s IBA annual meeting in Madrid on 4 October 2009. Mrs Pearson reported on the 2010 ILEX (International Legal Exchange) trip visit to New Zealand and Australia and provided an overview of the draft programme. The proposed dates for the New Zealand visit were Thursday, 11 and Friday, 12 February 2010. The group would visit Auckland only. The proposed format included a reception on Thursday evening for a large number of NZ legal practitioners and a roundtable discussion on the Friday with representatives of the High Court, Bar Association, Law Society, University of Auckland Law School Dean and others. A luncheon would follow with those attending the roundtable discussion and invited guests. The Bar Council agreed to support AMINZ Arbitration Day. Mr Hudson reported that the Rules Committee had proposed reviewing
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daily recovery rates by increasing the current rates by approximately 18%. The Bar Association had sought input from members who overwhelmingly supported the proposed increase. Mr Hudson reported on the Rules Committee’s report on the reform of written briefs. His view was that the proposal was a satisfactory compromise between the two extremes.
COLIN CARRUTHERS QC - President Ph: 0064 4 471 4275 Fax: 0064 4 471 1195 P O Box 305, Wellington crc@crcarruthers.co.nz MIRIAM DEAN QC - President - Elect Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 PO Box 4111, Shortland Street, Auckland, 1140 miriam@barrists.co.nz STEPHEN MILLS QC - Vice-President Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland, 1140 stephen.mills@shortlandchambers.co.nz CHRISTOPHER GUDSELL QC - Vice-President Ph: 0064 7 839 3290 Fax: 0064 7 834 0587 P O Box 19085, Hamilton, 3244 ctgudsell@xtra.co.nz
Mr Rogers reported on the Criminal Bar Association’s response to the Legal Aid Review and the issue of CLE for criminal barristers.
JONATHAN EATON - Vice-President Ph: 0064 3 471 2727 Fax: 0064 3 499 4620 P O Box 13-868, Armagh, Christchurch, 8141 j.eaton@.bridgesidechambers.co.nz
The Bar Council discussed the proposed three year mandatory training period for barristers.
KEN JOHNSTON - Treasurer Ph: 0064 4 372 3466 Fax: 0064 4 365 2592 P O Box 5058, Lambton Quay, Wellington, 6145 k-johnston@clear.net.nz
Ms Dean reported on the success of the Professor Raymond and J Anderson Little programmes and also provided an update on the Bar Association and Legal Research Foundation seminar arrangements. Mr Hudson reported that he had been hoping to hold the Take the Lead and Shape Your Future seminar in October however was having difficulty arranging a date which suited all the presenters. Mr Sissons provided an overview of the conference weekend. The Council discussed the recent article in Law Talk titled “Challenges for Justice in New Zealand” in particular the part relating to the issue of timely hearing for civil cases at a cost in keeping with the nature and the scope of the dispute. Mr Gudsell reported on his attendance at the ACT Bench and Bar dinner and the ABA Council meeting the following day, which he attended as an observer on behalf of the Bar Association. Mr Mills reported on a proposed article which a local magazine publisher was looking to run. The theme is whether trials are turning into cheap TV drama. The Council considered the matter in light of recent criticisms of one of the Bar Association’s members. The Bar Council acknowledged the appointment of Michael Slattery QC as a judge of the Supreme Court of New South Wales, and the recent passing of Mr Houston QC The meeting concluded at 5.45 pm.
TOBY FUTTER - Junior Barristers’ Representative Ph: 0064 9 308 0516 Fax: 0064 9 308 0518 Bankside Chambers, Level 22, 88 Shortland Street, Auckland toby@futter.co.nz CATHERINE BIBBEY Ph: 0064 3 377 5589 Fax: 0064 3 365 2592 P O Box 13-868, Armagh, Christchurch, 8141 c.e.bibbey@xtra.co.nz TIM CASTLE Ph: 0064 4 471 0523 Fax: 0064 4 471 0672 P O Box 10048, Wellington tim.castle@xtra.co.nz GERARD CURRY Ph: 0064 9 377 9783 Fax: 0064 9 377 9784 P O Box 106586, Auckland, 1143 gerard.curry@argylechambers.com KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland, 1140 kate@katedavenport.co.nz GRAHAM KOHLER Ph: 0064 9 307 9816 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland, 1140 kohler@shortlandchambers.co.nz ELLIOT HUDSON Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton, 3244 elliothudson@xtra.co.nz JOHN MATTHEWS Ph: 0064 3 409 2010 Fax: 0064 3 409 2012 P O Box 1770, Queenstown, 9348 jgmatthews@xtra.co.nz ANTHONY ROGERS Ph: 0064 9 377 4850 Fax: 0064 9 377 4850 P O Box 1771, Shortland Street, Auckland, 1140 agvr@xtra.co.nz