Continued from pages 1, 2, 4 It also has the benefit of narrowing and shortening cross-examination which, of course, appeals to me.
John Katz It is implicit in our system that it is adversarial.
I am not a fan of hot tubbing. While it may be convenient for the judge or for lazy counsel, I think it limits the ability of a good expert to add real value under cross-examination.
That said, that quintessentially Australian phenomenon known as the hot tub, or what I prefer to call concurrent evidence, where the experts get together and effectively argue between themselves their respective positions, is becoming more common in New Zealand and is a welcome development.
Steve Alexander Hot tubbing is over-rated and is not in itself sufficient to make a difference. There are many possible avenues for reform. The most important reforms to make the most difference would seem to be greater judicial case management, specialist courts, a move to court- or tribunal-appointed experts and tempering of the adversarial battle with a more inquisitorial process. Of those, I strongly favour greater judicial case management and tempering the adversarial process with a more inquisitorial process.
I really see no preference to be given to hot tubbing or concurrent evidence on the one hand and expert meetings directed under the High Court Rules on the other. As for future developments or prospects for reform, one of the major areas would be to limit the scope of expert evidence and the number of experts to be called. In England expert evidence can be deployed in court only by leave of the court. In New Zealand any party can call expert evidence without any prior approval being obtained from the court. I think the English approach is preferable.
A further area is in relation to the sheer cost of expert evidence. Generally, where a party has deployed expert evidence and succeeds at trial, the full costs of the expert are required to be paid by the opposing party. In England, where costs budgets are now required, the court exercises greater pre-trial control over experts’ costs and this is a welcome approach. It certainly makes access to justice more affordable especially litigants such as those in the Christchurch insurance claims. In simple terms, I think the courts can do a lot more to exercise super intendancy and control over expert evidence. This may, however, require a change to the court rules as our system generally works on the basis that parties are free to call such evidence as they see fit. For insights into expert evidence in the health and safety field, you might be interested in attending our upcoming seminar on 28 October.
Continued from pages 6, 7 Exchanges tend to use “web wallets”. These tend to be connected to the internet and are commonly known as a “hot wallet”. These wallets are easy to set up and the funds are quickly accessible, making them convenient for traders and other frequent users. But they have risks that other “cold” wallets, such as “paper” or “hardware” wallets, do not have, including the risk of the exchange’s central servers being hacked or the risk of the company itself becoming insolvent. Cold wallets, on the other hand, have no connection to the internet. Instead, they use a physical medium to store the keys offline, making them resistant to online hacking attempts. As such, cold wallets tend to be a much safer alternative of “storing” your coins. In QCX’s case the exchange held and managed the users’ private “keys”, allowing Cotten to steal their funds.
In Cryptopia’s case, the users deposited their “fiat” currency into a “hot wallet” for the cryptocurrency in question. Once deposited, the currency could be left in the hot wallet to meet withdrawal requests from other users or be transferred to a cold wallet. When a trade occurred between two users on the exchange, the users’ respective coin balances on the company’s internal ledger would change to reflect the trade but the balances in the company’s digital wallets did not change. The trades and transfers that took place on the exchange did not affect the blockchain ledgers (the general ledgers of ownership that exist for each cryptocurrency outside of the exchange). This is because the coins remained in Cryptopia’s digital wallets. Only trades outside the exchange would be recorded on the relevant cryptocurrency’s public ledger. However, crucially,
like QCX, Cryptopia exclusively held the private keys to its digital wallets that contained the cryptocurrencies traded on the exchange. Account holders did not have access to the private keys. This, and the fact the hot wallets were connected to the internet, allowed them to be hacked. With ever-increasing numbers of “mobile” hot wallets and exchanges, and the assets held and traded on them increasing in value, investors need to understand how ownership of their crypto property is recorded and managed. While we hate and often overlook it for the sake of convenience, doing your research and reading the fine print is likely to be your best line of protection from a crypto insolvency. James Cochrane and Arran Hunt are partners at Stace Hammond and Samantha Chow is an intern
NEW BOOK
Assessment of Mental Capacity: A New Zealand Guide for Doctors and Lawyers Authors: Alison Douglass, Greg Young and John McMillan
it is assessed and what supporting people with impaired capacity means in practice.
The guidance in this book has been written to serve the needs of doctors, lawyers, health practitioners, families and whānau. It is written by experts from a range of disciplines including law, medicine and ethics and is based on the Toolkit for Assessing Capacity.
Price for non-members: $50.00 plus GST* Price for ADLS members: $45.00 plus GST*
It combines an explanation of the law, case studies and practical guidance for health and legal practitioners about capacity, how
10
(* + Postage and packaging) To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.