Preparing for a Civil Case

IN1 Initial client interview

IN1.1 Objectives of Initial Client Interview

Establishing a relationship of trust and confidence

Understanding the issue(s)

Understanding the client's aims and expectations

Eliciting relevant information and documentation

Providing initial legal advice and future direction

Setting clear parameters for reporting and costs

Interview Style Considerations

The nature of the interview depends on the lawyer's personal style and the client concerned. An interview with a new, personal, non-commercial client will be conducted quite differently from one with a representative of a corporate client with whom you have had previous dealings.

Client Perspectives

For some clients, being involved in a legal matter can be intensely stressful. The issues involved may be difficult and the source of anxiety. They may be concerned about and even resentful of legal costs. They may have lost perspective, or have no idea of what is involved in the litigation process. On the other hand, they may be very familiar with the process, realistic about costs, and simply see litigation and the risks it involves as an ordinary part of doing business. All these factors will influence the style and format of the interview.

IN1.2 Documentation

It is important to develop a standard client interview form for use in all matters, to ensure that you obtain the basic details and that you address relevant matters of costs, reporting, and potential conflicts of interest. A suggested form is Inter02 — Client instruction/interview sheet. To ensure that the basic issues have been addressed, a similar form should be completed for each new client matter, even if instructions have been received by letter.

More detailed forms can be used to provide a checklist of matters to be addressed as appropriate. A sample form for use in debt recovery is Inter03 — Interview form — debt recovery.

A client interview typically follows these key stages:

Introduction

Getting the client to tell their story

Checking the details

Explaining the legal position and generating options

Deciding future direction

Discussing costs and reporting

All discussions and conclusions should be documented in a follow-up letter (see Inter04 — Sample follow-up letter recording instructions).

IN3.1 Introduction

Begin by introducing yourself and any other staff present (such as a law clerk). If cost is a concern for the client, explain why other staff are present. Be sure to mention if someone is there for training and their time won't be charged.

Obtain the names and roles of everyone attending on the client's behalf.

Outline the interview structure, explaining that you will:

Ask why they've come to see you

Clarify relevant details

Discuss options

Cover costs and reporting

Agree on next steps

IN3.2 Asking the client to tell their story

Ask the client to explain their situation. This step is crucial for all clients, even corporate ones or those whose cases you're already familiar with through documentation.

Letting clients tell their story in their own words reveals what matters most to them. While these concerns may not always be legally relevant, they're often crucial for finding a satisfactory solution (for instance, whether maintaining a business relationship is important). This approach also helps uncover any overlooked facts.

Keep note-taking minimal at this stage. Just record critical points and areas needing further detail.

IN3.3 Checking the details

After hearing the client's story, review the key details. Summarise what you've heard to confirm your understanding, then ask follow-up questions. This is when you should gather additional information, explore legally relevant issues, and identify important documents and potential witnesses.

Use a checklist when appropriate to ensure thorough coverage (see for example Inter03 — Interview form — debt recovery).

IN3.4 Explaining the legal situation and generating options

While you may need to make additional inquiries after the interview, it's important to discuss potential options now to explore possible approaches.

If you've formed an opinion about the legal options, explain them clearly and practically to the client.

Consider solutions beyond purely legal approaches. Aim for outcomes that make both commercial and personal sense. Write down options and examine their pros and cons.

Listen carefully to your client. Help them separate personal concerns from legal issues. While you may need to manage unrealistic expectations, avoid dismissing any option immediately—it might prove viable on further consideration, and dismissal could make the client feel unheard.

IN3.5 Deciding on future direction

After reviewing the options, work with the client to determine the best path forward. You'll likely need more factual or legal information before making final decisions. Ensure the client leaves understanding both your next steps and what they need to provide (such as documents, information, or witness details).

IN3.6 Costs and reporting

Costs and communication are the two main sources of client dissatisfaction with legal services. Clients often find bills unexpectedly high or struggle to reach their lawyers.

Address these issues by establishing clear reporting and billing parameters from the start. While the engagement letter covers these matters, discuss them during the meeting and confirm the client's understanding. Clear expectations improve client relationships and reduce disputes.

Regarding costs, explain your billing frequency and nature. If you can estimate costs, be conservative as they often exceed initial projections. If your firm requires advance payment, explain upfront that it's held in trust and billing will be transparent.

For reporting, discuss frequency (weekly, monthly, or at key stages) and scope. Determine if the client wants copies of all documents, including letters and court filings. Consider how reporting frequency affects costs. Remember that court orders affecting your client must be communicated promptly.

IN3.7 After the interview

Document the interview thoroughly while it's fresh in your mind, including facts, client concerns, and advice given.

After providing the engagement letter, send a follow-up letter to the client:

Confirming instructions

Summarising the issue

Recording next steps (for both you and the client, including deadlines for additional information)

Documenting cost and reporting arrangements (see Inter04 — Sample follow-up letter recording instructions)

Inter02 — Client Instruction/Interview Sheet

Name:	ㅤ	Date:	ㅤ
Address:	ㅤ	ㅤ	ㅤ
ㅤ	ㅤ	ㅤ	ㅤ
Email:	ㅤ	ㅤ	ㅤ
Phone (Home):	ㅤ	Phone (Work):	ㅤ
Fax:	ㅤ	Mobile:	ㅤ
Nature of matter	ㅤ	ㅤ	ㅤ
ㅤ	ㅤ	ㅤ	ㅤ
Legal Aid	☐ Yes	ㅤ	☐ No
Fees arrangement	ㅤ	ㅤ	ㅤ
Method:	ㅤ	Frequency:	ㅤ
Estimate given:	☐ Yes	ㅤ	☐ No
Amount:	$	Reporting arrangement:	ㅤ
Assumptions:	ㅤ	ㅤ	ㅤ
Company search(es) complete:	☐ Yes	ㅤ	☐ No
Conflicts check:	☐ Yes	ㅤ	☐ No
Letter of engagement sent	☐ Yes	ㅤ	☐ No

Company Searches (of each party):

Plaintiff:

Defendant:

Inter03 — Interview form — debt recovery

Client Details	ㅤ
Name:	ㅤ
Address/Registered office:	ㅤ
Occupation:	ㅤ
Phone:	Fax:
E-mail:	ㅤ

Creditor Details (if different from client)	ㅤ
Name:	ㅤ
Address/Registered office:	ㅤ
Occupation:	ㅤ
Phone:	Fax:
E-mail:	ㅤ

Debtor Details	ㅤ	ㅤ	ㅤ
Name:	ㅤ	ㅤ	ㅤ
Address/Registered office:	ㅤ	Occupation:	ㅤ
Phone:	ㅤ	Email:	ㅤ
Known Assets:	ㅤ	ㅤ	ㅤ
	ㅤ	ㅤ	ㅤ
Other Information:	ㅤ	ㅤ	ㅤ
	ㅤ	ㅤ	ㅤ
Dependents?	Yes	No	Unknown
	ㅤ	ㅤ	ㅤ
Other debts?	Yes	No	Unknown
	ㅤ	ㅤ	ㅤ
Debt — Amount of debt	ㅤ	How was it incurred?	ㅤ
How was debt incurred?	ㅤ	ㅤ	ㅤ
Goods/services:	ㅤ	Date of supply of goods/services:	ㅤ

Written contract:	Yes	No
Agreed interest rate (if any):	ㅤ	ㅤ	ㅤ
Agreement as to recovery of costs (if any):	ㅤ	ㅤ	ㅤ
Details of any payments made:	ㅤ	ㅤ	ㅤ
Demand made?	Yes	No	ㅤ
Any guarantee?	Yes	No	ㅤ
Any security/potential security?	Yes	No	ㅤ

Gathering information, and analysis and formulation of the claim

Step 1: Investigating the claim

DA1.1 Introduction

Case management is a judge-led means of keeping forward momentum in litigation. It is event-driven so that, at an early stage, the progress of the case is mapped out, with key dates to work towards.

Its origins lay in a widely held belief that, left to their own devices, the parties (that is, the lawyers) had a tendency to let a case drift once the initial furore over the pleadings had died down.

The principal consequence of the case management regime is that, following the first case management review or conference onwards, each case management conference will end with the allocation of a new case management conference date, a court-imposed list of targets for counsel to achieve by that date and a report on progress expected.

The District Court and High Court practices diverge here, reflecting the different forms of trial and resolution offered in the two jurisdictions, but the underlying principles are the same. Early preparation is essential and cooperation by the parties is required. If such is not forthcoming, some robust and hands-on judicial management can follow if it appears that one, some or all of the parties are dragging the chain.

A conference may be convened at any time on the request of one or more of the parties or, reflecting the judge-led nature of the regime, on the judge’s own initiative.

In addition to the judge, the registry will have allocated the proceeding to a case manager, who is responsible for monitoring the progress of the case. The case manager should be your principal point of contact at court for the case. Obtain an email address and if you can a direct dial telephone number.

The Ministry of Justice has centralised phoning the courts to an 0800 number (0800 268 787), and trying to contact a case manager through the call centre can be an extravagant waste of your time.

DA1.2 Timing of first case management conference

There are now different procedures for the first case management conference in the District Court and the High Court.

For a District Court proceeding, the first case management conference must be held — subject to judicial direction to the contrary — no earlier than 25 working days after the date when the first statement of defence is filed, but no later than 50 working days after the filing of the proceeding itself.

In practice, the case manager will list the matter in the first available case management list after the 25-working-day period has expired. It is usual for half an hour to be allocated for the first conference. Note, however, that there are only so many case management conferences that can be accommodated in a day, so even though your local court may have a civil day once a week, there is no guarantee there will be space available on the next list day; it will depend on the level of judicial resourcing in the particular registry and the state of its backlog.

It pays to contact your case manager to ascertain suitable dates for the first case management conference to make sure that it is set down on a date when everyone is available and that allows sufficient time to prepare the required memorandum.

Setting the date should be in consultation with the other parties’ lawyers. The pre-set agenda and the case management regime require prompt contact between the parties in any event. You may have as little as three weeks from the filing of the defence to file the first case management conference memorandum, as the rules require it be filed 10 working days ahead of the first conference. It is expected to be a joint memorandum, which requires consultation ahead of time. (Rule 7.2(4) of the District Court Rules 2014 (DCR 2014) refers to 10 “days” rather than 10 “working days”, but it is clear from the rest of that rule that 10 “working days” is what was intended.)

Diarise the date by which you need to have filed a joint or separate case management conference memorandum and then diarise it again for at least the week before: give yourself plenty of time to discuss the case management requirements with your opposing counsel and your client.

The case manager will be concerned to ensure the proceeding is moving forward and that when it is put before a judge the memorandum filed is a considered and accurate document. If that will take a bit more time, that is likely to be afforded on a reasoned and reasonable request.

For a High Court proceeding, the registrar will not automatically fix a date for the first case management conference. Instead, the parties must file a joint memorandum (or separate memoranda) addressing the matters specified in r 7.3(2) of the High Court Rules 2016 (HCR 2016). The memoranda must address the matters specified in sch 5 of the HCR 2016, the making of a discovery order, the hearing and — if practicable — the disposal of any outstanding interlocutory applications, the fixing of a close of pleadings date, the fixing of a trial date (for any proceeding classified as an ordinary defended proceeding) along with the making of appropriate trial directions) and a date and arrangements for any further case management conference, issues conference or pre-trial conference.

If the parties are filing a joint memorandum, it must be filed no later than 15 working days after the first statement of defence is filed. If the parties are filing separate memoranda, the plaintiff must file its memorandum of counsel no later than 15 working days after the first statement of defence is filed, and the other parties must file their separate memoranda of counsel no later than five working days after the plaintiff files its memorandum of counsel.

As soon as practicable after receiving the joint memorandum or separate memoranda, the registrar must refer them to a judge. If the judge is satisfied that the memoranda meet the requirements under r 7.3(2), the judge may allocate a trial date and make trial directions or direct that a case management conference or issues conference be held and that there is no requirement for a first case management conference. If the judge is not satisfied that the memoranda meet the requirement under r 7.3(2), the judge may direct the registrar to convene a first case management conference, which must be held no later than 15 working days after the judge directs the registrar to convene the conference.

DA1.3 Tasks

Ensure that you prepare as early as possible for case management conferences and that you cooperate with the other parties.

Ensure that you know the contact details of the case manager.

Liaise with the other party’s lawyer and the case manager to set a suitable case management conference date.

Review all the pleadings to identify their sufficiency and clarity. (See the module Commencement of Proceedings at [BD10] (Step 10. Pleadings checklist) and Civil Litigation Precedents (online ed, Thomson Reuters) at Plead02 — Drafting pleadings.)

Consider whether additional parties should be joined and, if so, who. (See the module Gathering Information, and Analysis and Formulation of the Claim at [BC7] (Step 7. Plaintiff and defendant — identifying the parties).) Use as necessary the following in Civil Litigation Precedents:

BC1 Matters to consider

It is important to work out who the key people in the dispute are, for both sides.

Over and above the need for this information to formulate the claim, you must be in a position to establish that your practice has no conflicts of interest. (See Civil Litigation Precedents (online ed, Thomson Reuters) at [IN1] (Conflicts of interest).) Your practice may have acted for the proposed defendant or someone closely connected to the proposed defendant, which may preclude you from acting in the matter.

Once their identities are known, outline statements from the main actors need to be obtained before commencing any proceeding. You should do so in all cases except where there is an imminent deadline that cannot be extended, such as for claims that would be barred by a limitation period.

A pleading prepared without a good working knowledge of the available evidence to establish it at trial may prove to be a millstone round your neck, especially if the evidence of the witnesses departs from or contradicts your central case thesis. Such contradictions can be a very fruitful source of cross-examination material for opposing counsel. You can avoid this problem by getting early written details of the likely evidence so that the pleadings reflect that evidence.

The outline statements will not be in the trial brief form. Nor need they be in the detail necessary for a trial brief. But it is of the utmost importance that you know in a general way what the key people would say in a trial. This sort of information will also be required for a judicial settlement conference. (See the module District Court — Judicial Settlement Conference and Second Case Management Conference at [DB1] (Step 1. District Court — judicial settlement conference).)

From these statements you can cross-reference the witness’s evidence to the documents in the case. In this way you will gain an early feel for the dimensions of the case and how it would best be presented.

You will also know whom you need to keep in contact with over the course of the litigation, so that they can be available for the eventual trial itself. In the event of some unforeseen witness unavailability (such as departure overseas or even death), the statement may be capable of use under the hearsay provisions of the Evidence Act 2006.

BC 1.2 Tasks

Identify the main people involved in the dispute, both as potential parties to the proceeding and as witnesses.

Either contact the witnesses yourself, or have the client contact them with your contact information and request they contact you.

Ascertain whether you or your firm have any potential conflicts of interest, by reason of a previous professional relationship or otherwise.

Obtain outline statements from likely witnesses, either in person or by correspondence. (See [BC6] (Step 6. Plaintiff and defendant — obtaining witness statements) below.)

Obtain dates when the witnesses you are likely to call may be unavailable to give evidence. (Again, see [BC6] below.)

Ascertain whether you can obtain further information by a request under the Official Information Act 1982, Local Government Official Information and Meetings Act 1987 or Privacy Act 2020. (See [BC2] (Step 2. Other sources of information) below.)

BC 1.3Next step

Proceed to [BC2] (Step 2. Other sources of information).

Step 2: Other sources of information

BC2.1 Matters to consider

It is a worthwhile exercise spending some time considering what information third parties may hold, which is relevant to the dispute. If it is personal information about an individual (not a legal entity, such as a company), it can be requested, with that person’s consent, under the Privacy Act 2020.

If it is held by a government department or organisation, or a local authority, it may be accessible through a request under the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987.

If the information holder is likely to be a defendant in the proposed proceeding, you may wish to consider drafting the request yourself, but having the client send it. As a practical matter, a lawyer’s letter may provoke a defensive response, whereas a request directly from the client may not raise the spectre of imminent litigation.

BC2.2 Tasks

Consider whether information, including personal information about an individual, is held by a third party.

If relevant, request information held by a government department or local authority.

Consider drafting information requests yourself in relation to any information holder who is likely to be a defendant.

BC2.3 Further reading

(1) Legislation

Local Government Official Information and Meetings Act 1987.

Official Information Act 1982.

Privacy Act 2020.

BC 2.4 Next step

Proceed to [BC3] (Step 3. Keeping a litigation file).

Step 3: Keeping a litigation file

BC3.1 Matters to consider

Once documents and statements start arriving in your office, you will need to keep them in a way that provides for ease of access and reference. How you do so may be dictated by your practice’s office systems, but litigation files generally are organised in a large tab-separated ring binder along the following lines:

Pleadings.

Applications with supporting affidavits and memoranda.

Case management memoranda.

Orders and directions.

Notices given and received.

Evidence:

Witness statements.
Principal documents.

If you are filing documents electronically, you will keep these documents in a folder with subfolders corresponding to the tabs you would use if you were keeping a hard-copy file.

Whether the statements and documents are contained in the same file will of course depend on how many there are.

This form of litigation file provides for ease of reference during the administration of a court proceeding. However, it is not necessarily the same as the trial file, because the latter is more focused on evidence and how it will be presented.

BC3.2 Tasks

Open a litigation documents file. A tab-separated ring binder file is preferable. Alternatively, keep an electronic file with subfolders.

File documents (pleadings, applications, orders and so on) under the appropriate tab or subfolder, as and when they arrive.

Copy the documents to the client as and when they arrive (subject to the client’s wishes).

BC3.3 Next step

Proceed to [BC4] (Step 4. Plaintiff and defendant — fact analysis).

Step 4: Plaintiff and defendant - fact analysis

BC4.1 Matters to consider

Once you have bolted down the legal nature of the claim, the next step is to ascertain what sources of proof are available to establish it to a judge’s satisfaction.

The starting point is always: what are the legal ingredients of the cause of action or ground of defence? These ingredients give rise to the necessary factual allegations you must plead and prove in order to establish a right to redress by a court.

It is also at this stage where the statements of claim or defence begin their initial formulation.

In a five-column table, you will need to summarise what you need to prove, the evidence to prove it, the source of that evidence, the corresponding paragraph in your pleading, and an audit column for later.

For example, in a contract dispute for failure to deliver goods the following allegations could be:

Allegation	Evidence	Source	Paragraph	Audit
Plaintiff a company	Certificate of incorporation
Defendant a company?
Agreement to purchase a desktop computer	Contract
Failure to deliver	Oral
Notice to supplier of default	Oral / letter
Business interruption as a result of not having the computer delivered	Oral

Tip

You can undertake this exercise even before you obtain the initial witness statements; it will serve to guide your preparation and direct what inquiries need to be made in a more focused manner. You will have worked out the basics of what needs to be proved and can direct your client to provide you with (at least) the names of the people involved in those particular aspects of the case.

The table can be completed as and when the source information arrives.

A good place to file it is at the beginning of the Evidence tabs or subfolders in the litigation file. (See [BC3] (Step 3. Keeping a litigation file) above.)

BC4.2 Tasks

Identify all causes of action available.

Identify the persons against whom those causes of action can be pleaded in the proceeding, and whether any other interested people or organisations ought to be named as parties in the proceeding. See [BC7] (Step 7. Plaintiff and defendant — identifying the parties) and [BC8] (Step 8. Representation of other interested parties) below.

Even when acting for the plaintiff, identify possibly available defences.

Identify the facts required to establish the causes of action or defences.

Identify the sources of proof for those facts.

Using the outline statements previously obtained as a guide, obtain formal witness statements. (See [BC6] (Step 6. Obtaining witness statements) below.)

Identify the legal remedy sought. In the case of a money claim, make an initial assessment of the quantum of the loss. (See [BC5] (Step 5. Quantum of the claim) below.)

Report on progress to the client and obtain instructions on how to proceed. (See [BC9] (Step 9. Reporting to the client) below.)

In a legal aid case, report on prospects of success to Legal Aid Services and seek a confirmed grant of legal aid. (See [BC9.3] (Billing for work done) below.)

BC4.3 Next step

Proceed to [BC5] (Step 5. Plaintiff — quantum of the claim)

Step 5: Plaintiff — Quantum of the claim

BC5.1 Matters to consider

If your claim is for a fixed amount pursuant to contract, quantification is a simple matter.

If what is sought is some form of compensation for loss, your initial inquiries need to take that fact into account. Quantifying loss can be a complex matter, frequently requiring expert evidence from accountants or other professional witnesses.

It is all very well to have a clear-cut legal claim, but unless the amount of the resulting recovery (as well as the ability to recover itself) is worthwhile, when weighed against the cost of establishing the legal claim, the advisability of a court proceeding must be in question.

The amount of the claim may also determine the court in which the proceeding must be commenced. In the District Court the amount of the claim will also have a bearing on the mode of trial directed. An early estimate of the amount of the dispute is therefore required for case management purposes.

The statement of claim also needs to put a dollar value on the amount sought, even for unliquidated claims, so the initial investigation of the claim needs to address the issue of quantum.

Importantly, if you are suing for the reasonable price of goods or services, even if the contract does not specify the amount, you can still frame the claim as one for a liquidated demand under the rules. Doing so may enable your client to obtain a default judgment if no defence is filed. (See the module Judgment by Default and Formal Proof (If No Defence Is Filed) at [CA1] (Step 1. Judgment by default).)

In this case your investigations need to address the manner by which a reasonable price can be established.

For special damages, see r 5.33 of the High Court Rules 2016 and r 5.36 of the District Court Rules 2014. Special damages are particular items of loss that can readily be quantified, such as damage to property or lost wages. They fall outside the scope of a general damages award and must be specifically claimed in the statement of claim before they can be recovered. (For special damages, see Civil Litigation Precedents(online ed, Thomson Reuters) at [PH3.2] (Application for relief).)

BC5.2 Tasks

Consider the amount of the claim in order to determine the court in which you will commence the proceeding.

Determine a dollar value on the amount sought in anticipation of including it in the statement of claim.

Consider, if suing for a reasonable price, whether you want to claim for a liquidated demand.

Quantify and categorise items that you wish to include in a claim for special damages.

BC5.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 5.35 Amount of money claim.

DCR 2014, r 5.36 Special damages.

(2) High Court Rules 2016

HCR 2016, r 5.32 Amount of money claim.

HCR 2016, r 5.33 Special damages.

BC5.4 Next step

Proceed to [BC6] (Step 6. Plaintiff and defendant — obtaining witness statements).

Step 6: Plaintiff and defendant — Obtaining witness statements

BC6.1 Matters to consider

Get proposed witnesses to draft their own statements. Doing so will enable you to gauge the language the witness ordinarily uses and how they communicate the facts of the case. The sooner you do so, the better: memories will be fresher the closer in time to the events the statement records.

The statements should be type-written if possible and double-spaced for ease of reading.

They should also:

be in chronological order of events;

refer to people involved in the events themselves (it is also useful if the statement refers to other people present at the time, even if they did not participate in the events themselves — these people may be able to confirm the contents of conversations and so on, backing up the evidence of your main witness); and

refer to the documents in the case, how they came into existence, and by whom and when they were used.

In addition to providing the witness with these instructions, it may be useful to provide the witness with a specimen statement as an example of the structure you want the statement to take.

Once you have the witness statements, you will be able to assess whether further information needs to be sought, or whether you are finally in a position to embark on a pleading. You should also be in a position to ascertain the likelihood of using the person’s evidence at trial. Where witnesses are likely to be called, it is good practice to establish if they have any significant travel plans, or other reasons why they would not be available as a witness, for the following 12 months or so.

If so, make a note of the likely period of unavailability. You will need this information for the case management phase when the judge is looking to allocate a trial date.

BC6.2 Tasks

Ensure that witness statements are in chronological order and refer to:

people involved in the events; and
the documents relevant to the case.

Ascertain the likelihood of using any witness statements at trial.

Ascertain when witnesses will be available to give evidence at trial.

BC6.3 Next step

Proceed to [BC7] (Step 7. Plaintiff and defendant — identifying the parties).

Step 7: Identifying the parties

BC7.1 Matters to consider

Once the basic facts have been investigated, the final question to be answered before drafting the pleading is: who is/are the appropriate person(s) to sue?

Again, this question applies equally to plaintiff and defendant litigation. A defendant on the receiving end of a statement of claim may have a counterclaim against the plaintiff and against others not currently named in the proceeding. A defendant may also be entitled to have third parties contribute to paying out an injured plaintiff, giving rise to a need to issue third party notices. (See r 4.4 of the District Court Rules 2014 and r 4.4 of the High Court Rules 2016.)

The general rule is that the proceeding should be limited to those people:

whose presence before the court is necessary to justly determine the issues arising; and

who ought to be bound by any judgment given.

It follows that you must undertake a rigorous analysis not only on what prospective defendants have done, but also in what legal capacity.

Usual examples are:

A person was acting as an agent for another. The principal may be equally (or exclusively) liable as a result. Conversely an agent may have failed to disclose the existence of the agency and be personally liable under the doctrine of the undisclosed principal. (A director may be acting for a limited liability company, but give the outward appearance of being a sole trader. In those circumstances, the agent may not be able to hide behind the company’s limited liability status.)

A person was a trustee, with no beneficial interest in the trust.

If two or more people are involved in the dispute, the question needs to be asked: are they properly co-defendants, or should they be separately named first defendant, second defendant and so on? Again your legal analysis of the respective capacities in which they acted will provide the answer to this question.

Under r 4.3 of the District Court Rules 2014 and r 4.3 of the High Court Rules 2016, someone may be joined jointly, individually or in the alternative as defendants if it is alleged there is a right to relief in respect of, or arising out of, the same transaction, matter, event, instrument, document, series of documents, enactment or bylaw.

On its face this provision is wide in scope, but a scattergun approach to naming defendants is to be avoided. The more defendants there are, the more opponents you have to deal with; you will wish to limit the number of fronts on which to face battle. Obviously the costs risks also multiply.

BC7.2 Tasks

Consider who is the appropriate person to sue.

Consider whether parties are co-defendants, or whether they should be named separately as first and second defendants.

Consider whether there is a counterclaim against the plaintiff and others not named in the statement of claim.

Consider whether there may be other parties from whom a contribution may be sought.

Consider whether any parties should be joined jointly, individually or in the alternative as defendants.

BC7.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 4.1 Limit on parties.

DCR 2014, r 4.3 Defendants.

DCR 2014, r 4.4 Third parties.

DCR 2014, Form 5 Third party notice.

(2) High Court Rules 2016

HCR 2016, r 4.1 Limit on parties.

HCR 2016, r 4.3 Defendants.

HCR 2016, r 4.4 Third parties.

HCR 2016, Form G 14 Third party notice.

BC7.4 Next step

Proceed to [BC8] (Step 8. Plaintiff — representation of other interested parties).

Step 8: Plaintiff — Representation of other interested parties

BC8.1 Matters to consider

Depending on the nature of the case, you may need to consider whether you should name individuals as defendants even though no actual redress is sought against them. If the interests of a person or class of persons could be adversely affected by the outcome of the litigation, as a general rule that person or class ought to be served with the proceeding.

It is common in trust cases for beneficiaries to be separately represented from the trustees, particularly if there is an allegation that the trustees have acted contrary to their trust obligations, or there are different classes of beneficiary with inconsistent interests. In those circumstances, there may be a need for an application to the court for directions as to service and for representation orders.

BC8.2 Tasks

Consider whether you should name as defendants individuals whose interests may be adversely affected, even though no actual redress is sought against them.

BC8.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 4.27 Representation by other persons.

DCR 2014, r 20.7 Applications for directions as to service.

(2) High Court Rules 2016

HCR 2016, r 4.27 Representation by other persons.

HCR 2016, r 18.7 Applications for directions as to service.

BC8.3 Next step

Proceed to [BC9] (Step 9. Reporting to the client).

Step 9: Reporting to the client

You should report your findings to the client at this juncture and advise in a preliminary way on the merits of the case, for and against.

BC9.1 Reporting to the plaintiff

It may be that your advice to the client is to walk away. You may reach this conclusion for many reasons, and only one of them is that the claim is not likely to succeed. The quantum of loss may be rivalled by the cost of taking the case to trial and the litigation risk too high to justify the expenditure. The stress of ongoing litigation may be such that it would not be in the client’s best interests to take the case. Alternative dispute resolution may, on reflection, be a better way to resolve the dispute. (See Civil Litigation Precedents (online ed, Thomson Reuters) at [CP2] (Alternative dispute resolution (ADR) and mediation).) Very frequently, the defendant against whom a proceeding would be commenced has no means to satisfy a judgment and no prospect of ever having them; in those circumstances, litigation is simply throwing good money after bad.

BC9.2 Reporting to the defendant

When acting for a defendant the issue is slightly different; there is a proceeding on foot and, unless steps are taken to defend, it is likely that the client will be in receipt of a default judgment sooner rather than later.

If a defendant has no defence or a poor one, the best option will probably be to see what terms of settlement can be obtained. In a claim for damages there may well be a genuine dispute as to quantum. In that event, the amount of the claim should be defended (or better still agreed upon).

BC9.3 Billing for work done

The client should be billed for work done to date with a request for written confirmation for instructions on how to proceed.

In a legal aid case you will need to report to Legal Aid Services with your opinion on whether there are reasonable prospects of success. You will need to address both the legal and factual elements of the claim or defence to support your conclusion that a grant of legal aid is justified.

BC9.4 Tasks

Report all findings to the client and give preliminary advice on the merits of the case.

Consider whether alternative dispute resolution is a better way to resolve the dispute.

Advise defendants that a failure to defend the proceeding is likely to result in a default judgment against them.

Bill for work to date.

Request written confirmation for instructions on how to proceed.

BC9.5 Next step

Proceed to [BC10] (Step 10. Contact with defendant by plaintiff’s lawyer).

Step 10: Contact with Defendant by Plaintiff’s lawyer

BC10.1 Matters to consider

Once the plaintiff has approved, the next step you may wish to consider is whether this is the appropriate time to contact the proposed defendant.

You will have enough information to write a letter setting out the general nature of the dispute and seeking an early resolution.

Pre-commencement correspondence of this nature is often referred to as a letter of demand, at once limiting its function and setting the tone of its contents. Demands do not generally meet with positive responses, whereas a more conciliatory tone may be all that is needed to get the defendant to the bargaining table. There are three sample letters of demand in

Civil Litigation Precedents

(online ed, Thomson Reuters) that can be used as guidance:

Intro02 — Simple letter of demand.

Intro03 — Sample letter of demand — ongoing issue.

Intro04 — Sample letter of demand — settlement not possible.

It is the lawyer’s role to help in resolving disputes and that objective should inform the initial contact with the defendant. A bellicose letter demanding submission to the plaintiff’s wishes within a short time frame is traditional, but of questionable efficacy.

A letter suggesting the parties meet or undergo some form of alternative dispute resolution, such as mediation, may engender a desire to resolve matters without the unpleasantness and expense of litigation.

The letter can also yield practical advantages for litigation if that is where things end up:

It may bring the matter to a quick and early close.

You may be able to tie the defendant down to a particular address for subsequent service purposes if the defendant responds to a letter sent to a particular address.

If solicitors are instructed as a result, they may accept service on the client’s behalf, thus avoiding the expense and delay of personal service.

The correspondence from the defendant or the defendant’s solicitors may provide you with further information about the dispute from their side of things. This further information can be invaluable, as it may put you on to further lines of inquiry helping you to formulate the claim. It will also serve to sharpen the focus of your statement of claim when it comes time to draft it, as you will have a better idea of what issues are actually in dispute.

If there is no option but to make a demand, make sure that you are in an immediate position to make good on your threats. If you state that a proceeding will be commenced within 14 days, the statement of claim should be finalised before you send the letter. An empty threat undermines your position. If opposing counsel concludes that you have a tendency to bluff, you will have damaged your ability to be effective in the matter, quite possibly for the rest of the litigation.

BC10.2 Tasks

Consider whether it is now appropriate to contact the proposed defendant(s).

Confirm by letter that you are instructed on the plaintiff’s behalf, outlining the dispute in general terms and seeking to open a dialogue with a view to resolving the matter. (See Intro02 — Simple letter of demand, Intro03 — Sample letter of demand — ongoing issue and Intro04 — Sample letter of demand — settlement not possible.)

Request the view that the proposed defendant(s) has/have of the dispute.

Diarise a date for a response.

In the event of a response, copy it to the client and take further instructions.

Review if necessary Plead02 — Drafting pleadings (a pleadings checklist).

BC10.3 Next step

Proceed to the next module Commencement of Proceedings (starting at [BD1])

Acting for the defendant

BF1.1Matters to consider

After receiving a statement of claim, the lawyer acting for the defendant will be under immediate time pressure.

Once you have established the due date for filing the statement of defence, you will need to conduct the same level of investigation for the defence as you would if you were acting for the plaintiff, including obtaining outline witness statements. (See the module Gathering Information, and Analysis and Formulation of the Claim at [BC3] (Step 3. Keeping a litigation file).)

With a District Court proceeding, unless your client has the documents immediately to hand, it is best to ask for copies of all the documents in the plaintiff’s initial disclosure list. In the High Court, of course, the plaintiff should have served the initial disclosure bundle with the statement of claim.

If the plaintiff has served a certificate instead asking for the documents when they are available (within 10 working days of service of the proceedings), an extension of time for filing the statement of defence could be sought until that occurs.

Any agreement to defer the time for filing a statement of defence needs to be in writing; you do not want there to be any uncertainty about the date by which a statement of defence must be filed. You may even wish to reduce the matter to memorandum form and have the registrar make a consent order.

If the plaintiff is not willing to give you the extension, you will need to make an application to extend time. If one of the reasons for the extension is that the plaintiff has failed to make initial disclosure within the rules or provide the documents on request, the extension is more than just likely.

You should make it clear that you will seek costs on the extension application in these circumstances, and this should be in writing; it may well have to be produced in court as an exhibit.

BF1.2 Tasks

Contact the plaintiff’s solicitor. (See the module Interviewing the Client and Dealing with Fees and Other Costs at [BB6] (Step 6. Follow-up action after first meeting — defendants).)

Request copies of all documents in the plaintiff’s initial disclosure list (District Court only), preferably by email.

Consider requesting an extension of time for filing the statement of defence if the plaintiff has not provided initial disclosure. (Again, see the module Interviewing the Client and Dealing with Fees and Other Costs at [BB6].)

Assess legal aid eligibility and complete as much of an application as possible. (See [BF2] (Step 2. Legal aid — defence) below.)

Ascertain whether the plaintiff was either bound to issue the proceeding in a different court or proceed by other means such as binding arbitration. (See [BF5] (Step 5. Correct registry? — defence) and [BF4] (Step 4. Protest to jurisdiction — defence) below.) If so, draft, file and serve either an interlocutory application for a change of venue or a protest to jurisdiction. (See the module Interlocutory Applications starting at [DE1].)

Assess the sufficiency of the statement of claim. Does it contain sufficient detail to respond to? If not, draft and serve a notice requiring a more explicit pleading, detailing which paragraphs of the statement of claim require greater specificity and request an extension of time for filing the statement of defence as a result.

Serve the notice on the plaintiff’s solicitor.

Consider whether there is a counterclaim. (See [BF7] (Step 7. Counterclaim) below.)

Prepare the statement of defence and any counterclaim and initial disclosure. (See [BF6] (Step 6. Statement of defence pleadings) below.) Use as necessary the following in Civil Litigation Precedents (online ed, Thomson Reuters):

Review the checklist in Civil Litigation Precedents at Plead02 — Drafting pleadings.

Obtain the funds necessary for the filing fee for statement of defence or draft a fee waiver application. (See the module Disclosure, Filing and Service, and Receipt of Statement of Defence and Counterclaim at [BE3] (Step 3. Filing fees).)

Under a covering letter, file the statement of defence and list of documents relied on (District Court only) with the filing fee.

Check the details of the addresses for service and means of service provided by the plaintiff, as contained in the memorandum endorsed at the end of the statement of claim.

Contact the plaintiff’s solicitor to ascertain if any other defendants have been served and what address for service and service instructions have been provided. If service has not yet taken place, request notification of service when it takes place.

Serve the statement of defence and (High Court only) bundle of documents or (District Court only) list of documents on the other parties at their respective addresses for service or in accordance with the service instructions in the memoranda. (See [BF9] (Step 9. Filing and serving the statement of defence) below.)

As and when other defendants provide the plaintiff with service instructions, serve the documents on them in accordance with the service instructions.

Report to the client.

Step 2: Legal aid - Defence

BF2.1 Matters to consider

There is a looming date for filing a defence with filing fees to be paid. If an application for legal aid has been made, you can file a fee waiver with the statement of defence, pending the outcome of the legal aid application. The client must sign the form, so it should be completed at practically the first client meeting, and certainly when you have confirmed you will take the case.

Doing so will allow you to file the statement of defence at no immediate cost to the client.

Contact the Legal Aid Services office dealing with civil claims and discuss the matter with a grants officer. Grants officers are at their most amenable to something a little out of the ordinary if you keep them informed of what you are doing and why. Outline your client’s position and the fact that a statement of defence must be filed within a matter of days. Agree to provide such information as is not presently to hand within a reasonably short period.

Ask the grants officer to email you a confirmation that an application for aid has been made, as this confirmation needs to be appended to the fee waiver application. (See Ministry of Justice “Apply for help to pay the court fees for a civil or family case” <www.justice.govt.nz>.)

BF2.2 Tasks

Complete as much of the financial information in the application form as circumstances allow. (See the module Interviewing the Client and Dealing with Fees and Other Costs at [BB9] (Step 9. Legal aid).)

Forward the application form to the appropriate Legal Aid Services office, either by email or fax. Include a copy of the statement of claim and any other application filed by the plaintiff.

Specify the filing date for the statement of defence and your request for urgency.

Step 3: Sufficient detail in the Statement of Claim?

BF 3.1Matters to consider

Does the statement of claim disclose a cause of action? Does it contain sufficient particularity to respond to it?

Both are important questions, but a negative answer to either will not prevent the entry of a default judgment if a statement of defence is not filed.

BF3.2Tasks

Review the statement of claim (see Plead02 — Drafting pleadings).

Serve a notice requiring further particulars or more explicit pleading. Use as required:

Request (if necessary) an extension of time for filing the statement of defence.

BF3.3Further reading

(1)District Court Rules 2014

DCR 2014, r 5.24 Notice requiring further particulars or more explicit pleading.

(2)High Court Rules 2016

HCR 2016, r 5.21 Notice requiring further particulars or more explicit pleading.

CA1

CA1.1 Introduction

If the defendant does not file a statement of defence within the prescribed time limit, the plaintiff may seek judgment by default. Depending on the relief claimed, judgment by default is obtained either by filing an affidavit of service and sealing judgment or by listing the proceeding for formal proof.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

G16 — Affidavit of service.

DCR016 — Affidavit of service — Form 16.

SDCR016 — Sample affidavit of service (Form 16).

CA1.2 Liquidated demand or recovery of land or chattels

If the claim is for either a liquidated demand or the recovery of land or chattels, the plaintiff can obtain judgment by default by sealing judgment and filing an affidavit of service of the statement of claim and notice of proceeding, along with the prescribed fee. If the statement of claim and notice of proceeding have not been served personally on the defendant or on a solicitor accepting service on the defendant’s behalf, the plaintiff must also file an affidavit verifying the statement of claim.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

J1 — Judgment by default in case of liquidated demand.

J2 — Judgment by default in proceeding for recovery of land.

DCR032 — Judgment by default in case of liquidated demand — Form 32.

SDCR032 — Sample judgment by default in case of liquidated demand (Form 32).

DCR033 — Judgment by default in proceeding for recovery of land — Form 33.

If interest and costs are sought, make your calculation of both clear. If the registrar has difficulty in understanding how either is calculated, you jeopardise your ability to obtain judgment on the spot.

Bear in mind that, if your default judgment is rejected for filing, you will have given the defendant a de facto extension of time for filing a statement of defence.

A memorandum of costs is required in addition to the judgment in the prescribed form, but it is good practice to draft a memorandum covering both interest and costs. Table format is sufficient in simple cases.

CA1.3Claims other than for liquidated demand or recovery of land or chattels

If the claim is for anything other than a liquidated demand or the recovery of land or chattels, the plaintiff can obtain judgment only on formal proof of the claim. (See [CA2] (Step 2. Formal proof) below.)

CA1.4Tasks

In the case of a liquidated demand or for the recovery of land or chattels, if the defendant does not file a statement of defence within time, draft and file a judgment by default. Use as necessary:

Calculate the costs payable on (usually) the 2B scale with any filing fees and other disbursements included. Include a breakdown by cost heading, either in the covering letter to the registry or in a footnote to the judgment by default. (See the module Commencement of Proceedings at [BD7] (Step 7. Interest and costs).)

If the plaintiff claims interest, calculate the interest to the date of judgment using the formula set out in the prayer for relief in the statement of claim. Again, provide a breakdown so that the registrar can clearly see how the interest has been calculated.

By way of a covering letter, file the default judgment for sealing. Make sure you have also paid the required filing fee and filed sufficient service copies of the judgment for all parties. In addition, file the affidavit of service and (if required) the affidavit verifying the statement of claim.

Step 4: Protest to jurisdiction

BF4.1 Matters to consider

If you file a statement of defence, your client has submitted to the jurisdiction of the court and it is unlikely you will be able to challenge the forum once the statement of defence has been filed. However, if you file a protest to jurisdiction, the plaintiff cannot obtain a default judgment until a judge has determined the issue.

In cases where the parties or the subject matter has an international dimension, the preliminary question is: what country’s courts may hear and determine the dispute? Does this case need to be litigated in a different jurisdiction?

Even domestically there are numerous examples of ouster provisions depriving the courts of jurisdiction. The court’s jurisdiction can be ousted by agreement or statute (see for example claims for compensation under s 100I of the Biosecurity Act 1993), with binding arbitration the usual form of mandated dispute resolution. In such cases the courts’ jurisdiction may be challengeable.

The arbitration requirement may be an “all disputes arising” clause or may be limited to certain types of disagreement. You will need to check if either applies. Does the contract contain a binding requirement to submit the dispute to arbitration? Is the dispute within the terms of the arbitration provisions?

Where a plaintiff has filed a proceeding in the District Court, the defendant will also need to consider whether to apply to have the proceeding transferred to the High Court. Under s 86 of the District Court Act 2016, a defendant may generally require a proceeding to be transferred to the High Court if the amount of the claim or the value of the property or relief claimed or in issue exceeds $90,000. Otherwise, a defendant may apply to have the proceeding transferred to the High Court under s 87 of the 2016 Act, if the grounds for transfer in that section are met.

The next, and less than obvious, question is: are the client’s interests served by protesting the jurisdiction? Commercial arbitrations are becoming increasingly complex and expensive. The short and simplified trial procedures under the DCR may be quicker and cheaper than a full-scale commercial arbitration.

BF4.2 Tasks

Consider whether you have grounds to file a protest to jurisdiction.

Consider whether the client's interests are served by filing a protest to jurisdiction.

BF4.3 Further reading

(1)Biosecurity Act 1993

BA 1993, s 100I Compensation.

(2)District Court Rules 2014

DCR 2014, Form 13 Appearance under protest to jurisdiction.

(3)High Court Rules 2016

HCR 2016, Form G 7 Appearance under protest to jurisdiction.

BF4.4Next step

Proceed to [BF5] (Step 5. Correct registry? — defence).

Step 5: Correct Registry? — Defence

BF5.1 Matters to consider

If the plaintiff has filed the proceeding in a registry at a distance from the defendant, you now have the opportunity to raise the issue: filing a statement of defence in the plaintiff’s choice of registry will also be viewed as acquiescence.

Has an affidavit as to where the cause of action arose been filed with the High Court? If so, obtain a copy, as it almost certainly was not served with the proceeding. Does it disclose that a material part of the cause of action was at a distance or is the plaintiff relying on some geographical linkage that is not in dispute or is peripheral to the case? If so, you may apply to a judge to transfer the proceeding to a more convenient registry.

In the District Court, the geographical requirements appear to be broader, so an application to transfer the proceeding to a different registry may be more difficult to justify. The application may be made to either a judge or the registrar.

In either case, if an application is to be made it should be filed ahead of the statement of defence, or at very least at the same time. The covering letter should make it clear the defence is filed in that registry to comply with the filing deadline and is without prejudice to the outcome of the application to transfer the proceeding to a different registry.

Even if the proceeding is to remain in the registry in which it was originally filed, a party may apply to the court for the proceeding to be tried at a different place if the parties consent or the proceeding can be more conveniently or fairly tried at that place (High Court Rules 2016, r 10.1 / District Court Rules 2014, r 10.9).

BF5.2 Tasks

Consider whether it is prudent to file a statement of defence in the plaintiff’s choice of registry.

In High Court proceedings, consider whether to apply to a judge to transfer the proceeding to another registry if the plaintiff’s affidavit as to where the cause of action arose relies on a geographical linkage that is not in dispute or is peripheral to the case.

In District Court proceedings, consider whether to apply to the judge or registrar to transfer the proceeding to another registry.

File your application either before, or at the same time as, your statement of defence is filed.

BF 5.3 Further reading

(1)District Court Rules 2014

DCR 2014, r 5.1 How to determine proper registry.

DCR 2014, r 10.9 Venue and changing it.

(2)High Court Rules 2016

HCR 2016, r 5.1 Identification of proper registry.

HCR 2016, r 10.1 Venue and changing it.

Step 6: Statement of defence

The same pleading principles and obligations apply to statements of defence as to statements of claim. (See the module Disclosure, Filing and Service, and Receipt of Statement of Defence and Counterclaim at [BE1] (Step 1. Initial disclosure requirements).) Their function is to narrow the ambit of the dispute to its real issues. The traditional approach to statements of defence has been to hold one’s cards close to the chest and give away the least as possible. This approach now engenders little judicial sympathy.

BF6.1 Drafting

An elliptically pleaded statement of defence, while ultimately successful, can still lead to a costs order in the plaintiff’s favour if the real nature of the defence becomes apparent only at trial. See Verna Trading Pty Ltd v New India Assurance Co Ltd1991 1 VR 129 (VSC).

The statement of defence must address the allegations in the statement of claim, preferably in the same format and paragraphing as in the statement of claim. (See the module Commencement of Proceedings at [BD4] (Step 4. Drafting a statement of claim — formal matters and suggested structure).) The allegations must be admitted or denied. If an allegation is neither admitted nor denied, the court will treat it as admitted.

If the defendant has more to say on a given issue than the statement of claim paragraph’s contents, the defence will often contain a “says further” statement. Use subparagraphs to plead in this way, as it keeps to the general numbering scheme of the statement of claim:

“2.1 The defendant denies paragraph 2.1 of the statement of claim and says further:“2.1[Insert further factual allegations which relate to the same issue raised in the corresponding paragraph in the statement of claim.]”

Bear in mind the general rule that the party asserting a fact must prove it; the defendant has just assumed the burden of proving the further facts asserted at paragraph 2.1.

BF6.2Pleading an affirmative defence

If the defendant has an affirmative defence, that is, a set of facts which if they exist extinguish or reduce the defendant’s liability, those facts need to be set out. The facts giving rise to the affirmative defence may well be set out in the “says further” allegations, but it is good pleading practice to reiterate the ingredients of the defence at the conclusion of the defendant’s responses to the particular paragraphs in the statement of claim.

For example, it may be reasonably apparent from the defendant’s responses to a false imprisonment claim that the defendant will rely on a statutory authority to arrest and detain.

That should be set out in the form:

“AND BY WAY OF AFFIRMATIVE DEFENCE — SECTIONS 31 AND 315, CRIMES ACT 1961”“The defendant repeats paragraphs [relevant passages from the body of the statement of defence text] and says further:“5.1Constable SMITH was justified in arresting the plaintiff as he had formed reasonable grounds to suspect the plaintiff had committed an offence punishable by imprisonment, namely unlawful interference with a motor vehicle contrary to section 226 of the Crimes Act 1961.”“PARTICULARS OF GROUNDS FOR BELIEF”“(1)Police Communications had radioed to Constable Smith a description of a male seen attempting to break into a motor vehicle on Smith Street, Wainuiomata.“(2)That description was of a male Caucasian, between 20 and 30 years old, with short fair hair, wearing dark coloured trousers and a light tee shirt.“(3)Constable Smith saw the plaintiff in the vicinity of Smith Street half an hour after he received the radio communication.“(4)The plaintiff matched the description given.”

The difference between this pleading and the response to the statement of claim earlier in the statement of defence is that the affirmative defence expressly sets out a legal justification (which relieves him of not only criminal liability but also civil liability under s 2 of the Crimes Act 1961); it also particularises the grounds of defence.

Pleading in this way makes it abundantly clear to the plaintiff and the court what the facts are on which the defendant will rely, and also sets out the legal basis for the defence in a way that complies with the rules.

BF6.3 Tasks

Review the tasks relating to pleadings in the module Commencement of Proceedings at [BD4.3] (Tasks).

Review the tasks relating to initial disclosure in the module Disclosure, Filing and Service, and Receipt of Statement of Defence and Counterclaim at [BE1.3] (Tasks).

Respond to the allegations in the statement of claim insofar as possible in a paragraph-by-paragraph manner. Allegations must be admitted or denied.

Where further facts are alleged on a particular point, following the admission or denial, plead the further relevant facts.

Where the defendant will rely on affirmative defences, plead those at the end of the statement of defence, once all the allegations in the statement of claim have been addressed. Use as necessary:

BF 6.4Further reading

(1) District Court Rules 2014

DCR 2014, r 5.49 Filing and service of statement of defence.

DCR 2014, r 5.50 Requirements of statement of defence.

(2) High Court Rules 2016

HCR 2016, r 5.47 Filing and service of statement of defence.

HCR 2016, r 5.48 Requirements of statement of defence.

Step 7: Counterclaim — defence

BF7.1 Matters to consider

A counterclaim is a claim by a defendant against the plaintiff, or one of them in the case of multiple plaintiffs, and possibly others. The limitation placed on counterclaims involving persons other than the plaintiff(s) is that they must relate to or be connected with the original subject matter of the proceeding. If they are not related or connected, the counterclaim can be struck out and a separate proceeding would then be required (High Court Rules 2016, r 5.57 / District Court Rules 2014, r 5.59).

Another person not currently named as a party is referred to in the proceeding as the First (or Second, Third and so on) Counterclaim Defendant.

A counterclaim is in essence a statement of claim with exactly the same principles applying to it. (See the module Commencement of Proceedings at [BD4] (Step 4. Drafting a statement of claim — formal matters and suggested structure).) Initial disclosure must be made if served separately from the statement of defence and documents not previously included have been used.

The principal difference between a statement of claim and a counterclaim is that the defendant filing a counterclaim does not need to file a notice of proceeding with a counterclaim unless there is a counterclaim defendant not presently a party to the proceeding. If a notice of proceeding is required, HCR Form G 2 (see precedent G02 — Notice of proceeding) or DCR Form 1 (precedent DCR001 — Notice of proceeding — Form 1) must be prepared and served.

BF7.2 Tasks

If necessary, review Plead02 — Drafting pleadings (a pleadings checklist).

Identify whether the defendant’s claim against the plaintiff is related to or connected with the subject matter of the claims in the statement of claim.

Identify whether any other person, not currently a party to the proceeding, needs to be cited as a counterclaim defendant.

If so, draft a notice of proceeding naming the new party as the counterclaim defendant, and treat the preparation, filing and service of the statement of defence and counterclaim as if it were a statement of claim. (See the tasks relating to preparing the case for filing in the modules Disclosure, Filing and Service, and Receipt of Statement of Defence and Counterclaim at [BE2.2] (Tasks) and Commencement of Proceedings at [BD11.2] (Tasks).) Use as necessary:

BF7.3 Further reading

(1)District Court Rules 2014

DCR 2014, r 5.59 Counterclaim against plaintiff and another person.

DCR 2014, Form 1 Notice of proceeding.

(2)High Court Rules 2016

HCR 2016, r 5.57 Counterclaim against plaintiff and another person.

HCR 2016, Form G 2 Notice of proceeding.

Step 8: Checklist — defence

Proceed to Form 001.

Step 9. Filing and serving the statement of defence

Matters to consider

The rules require the statement of defence and any counterclaim to be filed and served on the plaintiff and all other parties. It is most important to ensure that the statement of defence is filed by the due date, as any failure to do so will allow the plaintiff to apply for a default judgment.

The statement of defence needs to be filed in the registry named in the notice of proceeding, unless the court has directed otherwise.

There is a filing fee payable for a statement of defence unless you file a fee waiver application that is accepted. If there may be some question as to the defendant’s entitlement to a fee waiver, the documents should be filed in person. You should seek an answer on the fee waiver application at the time, as if the registrar rejects the application the defence will be rejected for filing and the plaintiff may obtain a default judgment.

It may be inferred that the obligation to serve other parties is limited to those who have provided an address for service. If parties provide their addresses after the statement of defence has been filed, they must be subsequently served with your statement of defence.

The plaintiff’s solicitor or the court registry should have their service details available on request.

BF9.2Tasks

Ensure that the statement of defence and any counterclaim is filed and served on the plaintiff and all other parties.

Ensure that the statement of defence is filed in the registry named in the notice of proceeding unless the court directs otherwise.

Pay the filing fee unless you file a fee waiver application which is accepted. (See Ministry of Justice “Apply for help to pay the court fees for a civil or family case” <www.justice.govt.nz>.)

BF9.3Further reading

(1)District Court Rules 2014

DCR 2014, r 5.49 Filing and service of statement of defence.

DCR 2014, r 5.57 Filing and service (of counterclaim).

(2)High Court Rules 2016

HCR 2016, r 5.47 Filing and service of statement of defence.

HCR 2016, r 5.55 Filing and service (of counterclaim).

BF9.4Next step

Proceed to [BF10] (Step 10. Reporting — defendant).

Step 10. Reporting — defendant

BF10.1Matters to consider

As the case now moves into the case management phase, you should report progress to the client and interim bill the file if not done so already.

It is important that your client understands the significance of the case management process. Issues will arise on which you need instructions and in a timely way to comply with the inevitable deadlines that result from case management conferences. Your reporting letter should set these matters out with an explanation of case management and its significance to the proceeding.

If the client is in receipt of legal aid, you will need to report to your grants officer attaching the pleadings to your letter or email. Your initial legal aid grant is effectively at an end and you will need to justify aid for the next step.

You will need to complete an amendment to grant form, seeking aid for case management. Doing so will entail a report on the prospects of success in light of the issues raised on the pleadings.

BF10.2Tasks

Conduct a full file review of the pleadings and the evidence available.

Make an objective assessment of prospects of success, taking care not to underemphasise weaknesses or overemphasise strengths.

Develop a work plan to address any weaknesses, by obtaining further evidence.

Report to the client on the case as it stands, including your review of the case’s prospects.

In legal aid cases, report on prospects to the grants officer. Prepare a request for amendment of the grant to cover the case management phase.

If you have not done so already, interim-bill the file for work to date.

Step 11. Create a merged pleading

BF11.1Matters to consider

It is a useful practice to put all the allegations and responses contained in the parties’ pleadings in one document. It makes for ease of reference for all concerned. It also makes working out what is disputed and what is agreed a good deal easier, as no one has to flick between a number of different documents to make the assessment.

This practice, while not contained or sanctioned in the rules, is gaining increasing judicial approval.

It may also help if a different font is used to differentiate between the different pleadings. For example, in one of the illustrations used above the merged pleading would read:

2.1	On 1 June 2015 at 2.15 pm, Constable Jacob SMITH wrongfully and unlawfully arrested and detained the plaintiff.
2.1	The defendant admits Constable SMITH arrested and detained the plaintiff but otherwise denies paragraph 2.1 of the statement of claim and says further that Constable Smith had formed reasonable grounds to suspect the plaintiff had committed an offence punishable by imprisonment, namely unlawful interference with a motor vehicle contrary to section 226 of the Crimes Act 1961.
2.1	The plaintiff denies that Constable SMITH had formed reasonable grounds to suspect the offence of unlawful interference with a motor vehicle, or that there were reasonable grounds to suspect.

It can be seen immediately that the issues in dispute have been clarified and are apparent at a glance, rather than having to review the statement of claim, the statement of defence and the reply.

BF11.2Next step

If no defence is filed, proceed to the module Judgment by Default and Formal Proof (if no Defence is Filed) (starting at [CA1]).

Otherwise, proceed to the module Overview of Case Management and the First Case Management Conference (starting at [DA1]).

CA1.1 Introduction

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

G16 — Affidavit of service.

DCR016 — Affidavit of service — Form 16.

SDCR016 — Sample affidavit of service (Form 16).

CA1.2 Liquidated demand or recovery of land or chattels

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

J1 — Judgment by default in case of liquidated demand.

J2 — Judgment by default in proceeding for recovery of land.

DCR032 — Judgment by default in case of liquidated demand — Form 32.

SDCR032 — Sample judgment by default in case of liquidated demand (Form 32).

DCR033 — Judgment by default in proceeding for recovery of land — Form 33.

Bear in mind that, if your default judgment is rejected for filing, you will have given the defendant a de facto extension of time for filing a statement of defence.

CA1.3 Claims other than for liquidated demand or recovery of land or chattels

CA1.4 Tasks

In the case of a liquidated demand or for the recovery of land or chattels, if the defendant does not file a statement of defence within time, draft and file a judgment by default. Use as necessary:

Calculate the costs payable on (usually) the 2B scale with any filing fees and other disbursements included. Include a breakdown by cost heading, either in the covering letter to the registry or in a footnote to the judgment by default. (See the module Commencement of Proceedings at [BD7] (Step 7. Interest and costs).)

If the plaintiff claims interest, calculate the interest to the date of judgment using the formula set out in the prayer for relief in the statement of claim. Again, provide a breakdown so that the registrar can clearly see how the interest has been calculated.

By way of a covering letter, file the default judgment for sealing. Make sure you have also paid the required filing fee and filed sufficient service copies of the judgment for all parties. In addition, file the affidavit of service and (if required) the affidavit verifying the statement of claim.

CA1.5 Further reading

(1) District Court Rules 2014

DCR 2014, pt 15 subpt 2 Judgment by default.

DCR 2014, Form 16 Affidavit of service.

DCR 2014, Form 32 Judgment by default in case of liquidated demand.

DCR 2014, Form 33 Judgment by default in proceeding for recovery of land.

(2) High Court Rules 2016

HCR 2016, pt 15 subpt 2 Judgment by default.

HCR 2016, Form G 16 Affidavit of service.

HCR 2016, Form J 1 Judgment by default in case of liquidated demand.

HCR 2016, Form J 2 Judgment by default in proceeding for recovery of land.

CA2 Formal proof

CA2.1Matters to consider

If the claim is for anything other than a liquidated demand or the recovery of land or chattels, the plaintiff can obtain judgment only on formal proof of the claim.

Formal proof is a mini-trial on affidavit evidence. The plaintiff must establish both liability and quantum. (See the module Trial — District Court (Short and Simplified Trials) starting at [FA1].)

Where formal proof is required, the rules do not provide a mechanism for sealing judgment for damages to be assessed — unlike for example the English and Welsh rules. (See r 12.7 of the Civil Procedure Rules 1998 (UK).) While the new provisions are substantially less cumbersome than their predecessors, there is still scope for ambiguity. Efforts to circumvent the processes under the rules have not met with success; see Neumayer v Kapiti Coast District Council2014 NZHC 417, [2015] NZAR 1185.

The point at which a defendant is barred from filing a statement of defence without leave is the date on which the proceeding becomes listed for formal proof under r 15.9(3) of the High Court Rules 2016 (HCR 2016) or r 15.9(3) of the District Court Rules 2014 (DCR 2014). That date would appear to be the date when the registrar enters a case in the list rather than the listed day itself. Accordingly, your objective will be to secure an early entry into the list, rather than an early hearing.

In the High Court, it has been held that an Associate Judge does not have jurisdiction to grant a judgment by default under r 15.9 of the HCR 2016: Ford v Strangwick2019 NZHC 2245 at [36] and [38] per Churchman J. Accordingly, a formal proof hearing will need to be listed before a High Court Judge.

CA2.2 Tasks

Establish both liability and quantum for your formal proof claim.

Ensure that appropriate affidavits are created and filed.

CA2.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 15.9 Formal proof for other claims.

(2) High Court Rules 2016

HCR 2016, r 2.1 Jurisdiction and powers.

HCR 2016, r 15.9 Formal proof for other claims.

3 Obtaining formal proof

CA3.1 Matters to consider

The rules do not appear to prescribe a particular means by which a proceeding becomes listed for formal proof, as applications to set down a proceeding are a thing of the past.

The expression “listed for formal proof” in r 15.9(2) of the High Court Rules 2016 and r 15.9(2) of the District Court Rules 2014 is not precise in its meaning and is capable of a number of interpretations. Is it a nominal Civil Chambers List date, or must it be the substantive formal proof hearing?

This issue has practical implications given the way court registries allocate hearing time. If listing requires setting down for the substantive hearing, the registry will require a time estimate and possibly an indication of the number of affidavits to be filed and submissions in support. You are unlikely to be able to get a date allocated and thus have your case “listed” over the counter, as the court’s listing manager may have to sit down and pore over the judges’ rosters to see when such a hearing could be accommodated. If, however, a nominal date in a general list suffices, this date can be obtained at the court counter or possibly even over the phone.

It is suggested that the latter view is the correct one and you should seek entry of the proceeding in a nominal general list, at which time a fixture can be allocated for the final hearing. This course is consistent with the general objective of the rules in r 1.2 of the HCR 2016 and r 1.3 of the DCR 2014 to secure the just, speedy and inexpensive determination of any proceeding.

The letter requesting the matter be listed should attach the affidavit of service. The registrar should be asked to enter the case on a general Judge’s Civil List day. If the letter can be hand-delivered, you may be able to get the registry staff to allocate a date on the spot and for that to be entered into the court’s computer system CMS there and then.

The defendant is not entitled to notice of any of this. (See r 15.9(2) of the HCR 2016 and r 15.9(2) of the DCR 2014.) From then on, the defendant will need leave of a judge to file a statement of defence.

CA3.2 Tasks

Check with the case manager if a fee is payable for listing a case for formal proof.

Under a covering letter to the case manager, request that the proceeding be listed in the next available Judge’s List for formal proof.

Convert the witness statements obtained into the form of affidavits and have them sworn. DO NOT exhibit the witness statement to a pro forma affidavit.

Exhibit the necessary documents from the bundle to the affidavits rather than filing a bundle of documents with the court.

Review the affidavit evidence to confirm it establishes both the causes of action pleaded and the quantum of loss claimed. (Use the fact analysis template in the module Gathering Information, and Analysis and Formulation of the Claim at [BC4] (Step 4. Plaintiff and defendant — fact analysis).)

Prepare a brief written summary of the case (in effect an opening address), linking the causes of action to the evidence filed.

Prepare a draft judgment using the appropriate form:

HCR Form J 3 (see J3 — Judgment on trial by Judge); or
DCR Form 34 (see DCR034 — Judgment on trial by Judge — Form 34).

File the affidavits, your summary and the draft judgment with the court, preferably significantly in advance of the hearing date.

Diarise the hearing date once it is received from the court.

Before the hearing, ascertain from the court which judge is presiding at the hearing, and amend the draft judgment to include the judge’s name. Print off copies for the court and each party served with the proceeding, and a copy for your file.

Appear on the due date. Be in a position to address the judge on how and why the claim is proved on the evidence filed.

If the judge gives judgment in the same terms as your draft judgment, file the judgment with the filing fee for sealing judgments.

Once they are available, serve the service copies of the sealed judgment on all parties. Service will need to be effected by way of personal service for those who have not given an address for service. (See the module Disclosure, Filing and Service, and Receipt of Statement of Defence and Counterclaim at [BE4] (Step 4. Service).)

CA3.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 1.3 Objective.

DCR 2014, r 15.9(2) Formal proof for other claims.

DCR 2014, Form 34 Judgment on trial by Judge.

(2) High Court Rules 2016

HCR 2016, r 1.2 Objective.

HCR 2016, r 15.9 Formal proof for other claims.

HCR 2016, Form J 3 Judgment on trial by Judge.

CA3.4 Next step

Proceed (if relevant) to the module Enforcing Judgments (starting at [GA1]).

Case management

DA1.1 Introduction

Case management is a judge-led means of keeping forward momentum in litigation. It is event-driven so that, at an early stage, the progress of the case is mapped out, with key dates to work towards.

A conference may be convened at any time on the request of one or more of the parties or, reflecting the judge-led nature of the regime, on the judge’s own initiative.

The Ministry of Justice has centralised phoning the courts to an 0800 number (0800 268 787), and trying to contact a case manager through the call centre can be an extravagant waste of your time.

DA1.2 Timing of first case management conference

There are now different procedures for the first case management conference in the District Court and the High Court.

DA1.3 Tasks

Ensure that you prepare as early as possible for case management conferences and that you cooperate with the other parties.

Ensure that you know the contact details of the case manager.

Liaise with the other party’s lawyer and the case manager to set a suitable case management conference date.

Review all the pleadings to identify their sufficiency and clarity. (See the module Commencement of Proceedings at [BD10] (Step 10. Pleadings checklist) and Civil Litigation Precedents (online ed, Thomson Reuters) at Plead02 — Drafting pleadings.)

Consider whether additional parties should be joined and, if so, who. (See the module Gathering Information, and Analysis and Formulation of the Claim at [BC7] (Step 7. Plaintiff and defendant — identifying the parties).) Use as necessary the following in Civil Litigation Precedents:

Consider whether interlocutory applications are necessary and, if so, what they are. (See the module Interlocutory Applications at [DE1] (Step 1. Interlocutory applications).) Use as necessary:

Consider the nature and requirements of discovery. (See the module Discovery and Inspection of Documents at [DC1] (Step 1. Discovery — general) and [DC2] (Step 2. Discovery orders — standard or tailored discovery).) Use as necessary:

Discuss the conference agenda items with the lawyer(s) for the other party or parties. (See [DA4] (Step 4. Conference memoranda — general issues) below.)

Report to the client on progress.

DA1.4 Further reading

(1) District Court Rules 2014

DCR 2014, rr 7.1–7.11 (pt 7 subpt 1) Case management.

DCR 2014, r 7.2(2) First case management conference.

(2) High Court Rules 2016

HCR 2016, rr 7.1AA–7.17 (pt 7 subpt 1) Case management.

HCR 2016, r 7.3(2) First case management review.

DA2.1 Introduction

The need for thorough case preparation in advance during the pre-proceeding phase becomes increasingly clear at this stage, as the agenda for the first case management review or conference makes it clear the court is looking to allocate a hearing date sooner rather than later. You will be on the immediate back foot if the court sets a date for the close of pleadings and trial, when you have only an outline idea of who you are going to call to give evidence.

The preamble to the agenda in sch 5 of the High Court Rules 2016 rather sets the tone of the case management regime in whichever court the case is held:

The presiding judge will expect the parties at the first case management conference to have:

provided initial disclosure;

carefully considered the pleadings and the principal documents disclosed with them;

discussed and endeavoured to agree on an appropriate discovery order and the manner in which inspection will take place;

discussed and endeavoured to agree on the matters for consideration listed in the conference agenda; and

filed and served a joint memorandum or separate memoranda.

The District Court first case management conference agenda also requires the parties to address these same issues. In whatever jurisdiction your proceeding is filed, the judiciary will expect the same early assessment of the current state of the proceeding and the direction in which it needs to head and that the necessary preliminary work is under way.

This admonition is an indication of the reception you are likely to experience at the case management conference if that judicial expectation is not met.

Bear in mind that it is common, particularly in the High Court, for a proceeding to be allocated to a specific judge and for that judge to superintend the case management from then on. Early non-compliance is likely to flag to the judges that the parties cannot be relied on to progress the proceeding adequately themselves without vigorous assistance from the Bench. This is not a great start and could flavour your interactions with the court from the inception of the proceeding.

DA2.2 Review the pleadings

You will have reviewed the substance of the pleadings in the course of preparing the defence or reply, but now is the time for a stand-back analysis of the likely issues.

Do the pleadings accurately convey the essence of the dispute? Here you must look not only at your opponent’s documents, but cast a critical eye over your own. Is the defence ambiguous or vague? If so, what appropriate steps should you take to clarify the matter? You place yourself at significant tactical disadvantage at trial if you have permitted your opposing counsel to obscure the issues you will have to meet at trial.

If your own case needs finessing, the sooner you amend your pleadings the better. If the issues raised in the statement of defence mean you have to reframe some aspect of your case, it is preferable that you address that matter yourself, rather than have a judge direct you to do it.

DA2.3Should other parties be joined?

As a result of the pleadings, should other parties be joined? The defendant may have pleaded that acts of third parties caused or contributed to the loss claimed. Third party notices may have been issued. When acting for the plaintiff, you need to consider whether your client has a direct cause of action against the third party. In that case you are back at the investigation and fact analysis stage. (See the module Gathering Information, and Analysis and Formulation of the Claim at [BC4] (Step 4. Plaintiff and defendant — fact analysis).)

When acting for the defendant, it is important that you also consider whether you should issue a third party notice and, if so, to whom?

DA2.4 Discovery

In either the High Court or the District Court, the principal documents should have been disclosed either through service of the bundle or following request. (For a helpful guide to discovery, see Civil Litigation Precedents (online ed, Thomson Reuters) at Inloc01A — Discovery.)

If this has not occurred the matter needs to be resolved promptly by the party in default, or you risk a terse resolution by the judge at the case management conference, with costs at issue.

DA2.5 Discovery considerations — High Court

In the High Court a judge is required to make a discovery order unless the proceeding can be disposed of justly without any discovery. If a discovery order is to be made, it must be made at the first case management conference, unless there is good reason for making the order later. All sides need to turn their minds to the required scope of discovery and to discuss the scope of a discovery order and the discovery checklist no less than 10 working days before the first case management conference. This entails ascertaining who holds discoverable documents now and in the past — the obligation is to disclose not just material that is in the party’s control but also material that has been in the party’s control in the past.

Is this a case where standard discovery or tailored discovery is appropriate? Tailored discovery is any discovery that is more or less than standard discovery. (See

r 8.8 of the HCR 2016.) As the name would suggest, it is an order tailored to the particular needs of the case. While tailored discovery is always going to be case-specific, there is a presumption for tailored discovery under the

HCR 2016

and

District Court Rules 2014

in cases:

where the costs of standard discovery would be disproportionately high in comparison with the matters at issue in the proceeding;

that involve one or more allegations of fraud or dishonesty; or

in which the parties agree that there should be tailored discovery.

In the High Court, there is also a presumption for tailored discovery in proceedings in which the total of the sums in issue exceeds $2,500,000 or in which the total value of any assets in issue exceeds $2,500,000.

To what extent, if any, should the Listing and Exchange Protocol be used or varied?

The order will take the form of a judicial minute and, unless it has to be served on non-parties, would not normally be drawn up or sealed.

DA2.6Discovery considerations — District Court

Both standard and tailored discovery are available in the District Court. (See rr 8.7 and 8.8 of the DCR 2014.) However, for the purposes of a District Court first case management conference, the question to be answered is whether further discovery is required in order to determine how to proceed.

At the first case management conference, the judge needs to determine whether the case goes to a judicial settlement conference or directly to a short trial. The discovery question arises in one of two ways:

Is it required in order to make the choice between a judicial settlement conference or a short trial?

Is it required for either a judicial settlement conference or a short trial to run effectively?

The test is that discovery is “required”, not that it is desirable. The fact that there are discoverable documents in existence that may help is probably not enough at this stage; in the District Court, discovery is generally a matter for the second case management conference. (See r 8.5 of the DCR 2014.) If you want discovery before a short trial or judicial settlement conference, you will need to demonstrate why that hearing is going to be hampered without a discovery order. In order to do that, you will need to be able to identify particular documents or classes of documents likely to be in your opponents’ possession and the effect their absence may have on the next kind of hearing.

DA2.7 Evidence

In a dispute of relatively narrow compass, you can expect to receive trial directions at the first High Court case management conference. In order to address the necessary directions, you must know whom you intend to call at trial, as this is the principal determinant of your time estimate. You do not need to disclose names, but should be able to estimate how long the witness briefs are likely to be.

If expert testimony is required there are additional disclosure and consultation obligations to be timetabled. (Whether expert evidence is required to establish liability is a question that should be answered on the pleadings; if it is not, you have a pleadings issue to raise at the first conference. Whether it is necessary to establish quantum may be less apparent. That may be a matter for an issues conference.)

DA2.8 Tasks

Review the pleadings to ensure that they accurately convey the essence of the dispute. (See Civil Litigation Precedents (online ed, Thomson Reuters) at Plead02 — Drafting pleadings.)

Consider whether other parties should be joined to the proceeding. Use as necessary:

Ensure that the principal documents have been disclosed. Use as necessary:

Consider whether standard or tailored discovery is appropriate.

If acting in a District Court proceeding, consider whether discovery is required as opposed to being desirable.

If acting in a High Court proceeding, expect to receive trial directions at the first case management conference and consider in advance which witnesses you intend to call and estimate how long the witness briefs are likely to be.

DA2.9 Further reading

(1 ) District Court Rules 2014

DCR 2014, r 8.5 Discovery orders to be made at second case management conferences.

DCR 2014, r 8.8 Tailored discovery.

(2) High Court Rules 2016

HCR 2016, r 8.5 Discovery orders to be made at case management conferences.

HCR 2016, r 8.8 Tailored discovery.

Drafting Pleadings

ISSUES FOR THE PLAINTIFF

1.	Determine appropriate plaintiffs:HCR4.2, HCR4.23, HCR4.24 and HCR4.29/DCR4.2, DCR4.23, DCR4.24 and DCR4.29.
2.	Determine appropriate defendants:HCRHCR4.3, HCR4.1, HCR4.23, HCR4.24, HCR4.25, HCR4.26 and HCR4.29/DCR4.3, DCR4.1, DCR4.23, DCR4.24, DCR4.25, DCR4.26 and DCR4.29
3.	Can the proceeding be brought by originating application?Subpart 1 of Part 19 of the High Court Rules 2016/Subpart 2 of Part 20 of the District Court Rules 2014.
4.	Are representation orders required? If so, consider interlocutory application before filing proceedings:HCR4.27/DCR4.27.
5.	Venue: Determine venue under HCR5.1/DCR5.1. If the place where the cause of action arose is other than that nearest the defendant’s place of residence or business, prepare affidavit as to venue — HCR5.1(3)/DCR5.1(3).If necessary, consider possibility of agreement on different venue. This can be done by an endorsement on the statement of claim under HCR5.25(3)/DCR5.28(3).[
6.	Draft statement of claimHCR5.26-HCR5.30, HCR5.31-HCR5.35, HCR5.17, HCR5.20, HCR5.21 and HCR15.1/DCR5.29 – DCR5.32, DCR5.34 – DCR5.37, DCR5.20, DCR5.23, DCR5.24 and DCR15.1.Check: • Heading — statement of claim, full form; other documents, abbreviated form: HCR5.11, HCR5.13, HCR Form G 1/DCR5.14, DCR5.16 and DCR Form 2 (DCR002). • Is reference to statute required in heading? • Have you pleaded material facts only? • Is each cause of action separately pleaded? Use headings. • Have you given enough particulars? • Have you included a memorandum and address for service? • Do you have one statement of claim to file, and enough copies for service and proof of service?
7.	Prepare notice of proceeding:HCR5.23, HCR5.24 and HCR Form G 2/ DCR5.26, DCR5.27 and DCR Form 1 sign.Change the 30 working days reference where appropriate (eg, for service overseas) — HCR6.35/DCR6.31
8.	Prepare memorandum in HCR Form G 4 / DCR Form 3. Where defendant is overseas, use HCR Form G 6. Prepare one copy to file, enough copies for service and proof of service, one copy to retain on file.
9.	File at the appropriate Registry for the venue: • Statement of claim and notice of proceeding and memorandum
10.	Obtain Deputy Registrar’s signature on memorandum and service copies. (Take a copy of any documents signed by the Registrar.)
11.	If filing in the District Court, the plaintiff must create a list in DCR Form 6 of: • all documents referred to in the Statement of Claim; and • any additional documents that the plaintiff is relying onand serve it on the other parties at the same time as the service of the statement of claim – DCR8.4 and DCR4.19.
12.	Serve documents: • Service of originating process in New Zealand: HCR5.70-HCR5.73/DCR5.66 – DCR5.69. • Is service abroad required? Leave not required if within HCR6.27/DCR6.23. If leave required, prepare an interlocutory application for leave under HCR6.28/DCR6.24 • Notice of proceeding for service abroad has memorandum in HCR Form G 6.Do not serve documents on Sunday, Christmas Day, New Year’s Day or Good Friday: HCR6.19 and s 54 Judicature Amendment Act 1972; DCR6.21
	For service on:
	Individual (personal service)
	Corporations

	Partnerships
	Husband and wife
	Representative
	Solicitor
	FoDCRservice by:
	Previous agreement
	Prompt service (as soon as practicable)
	Extension of time
	Substituted service

13.	Diarise the expiry date for filing of statement of defence by the defendant, and for preparation of memorandum for first directions conference or the plaintiff’s information capsule.

ISSUES FOR DEFENDANT

1.	If the plaintiff has commenced proceedings with a statement of claim, check date of service, and date for filing statement of defence from notice of proceeding: HCR5.47/DCR5.49.
2.	If extension of time is required for filing statement of defence, arrange with other side or apply for extension: HCR1.19/DCR1.23.
3.	Consider filing an appearance in lieu of statement of defence/notice of response: • Appearance under protest to jurisdiction HCR5.49, HCR Form G 7/DCR5.51, DCR Form 13. • Appearance for ancillary purposes HCR5.50, HCR Form G 8/DCR5.52, DCR Form 14. • Appearance reserving rights HCR5.51, HCR Form G 9/DCR5.53, DCR Form 15. • If filing an appearance, prepare appropriate forms, sign, file, and serve. No statement of defence/notice of response is needed. Documents should contain address for service — HCR5.44/DCR5.47.
4.	Check that venue is correct. Is there an argument for transferring the proceeding to another Registry?HCR5.24, HCR5.1/DCR5.27, DCR5.1.
5.	Are further particulars of statement of claim required for proper defence?If so, give notice HCR5.21/DCR5.24.
6.	Are there grounds for an application to apply for summary judgment against the plaintiff, or to strike out statement of claim as disclosing no cause of action, etc? If so, make interlocutory application: • Summary judgment— HCR12.2 / DCR12.2 • Strike out — HCR15.1/DCR15.1
7.	Are there grounds for an application for stay? — HCR15.1/DCR15.1
8.	Are you filing in the District Court?The Defendant must create a list in DCR Form 6 of: • all documents referred to in the Statement of Claim; and • any additional documents that the plaintiff is relying onand serve it on the other parties at the same time as the service of the statement of defence – DCR8.4 and DCR4.14.
9.	Do you require discovery before filing statement of defence?HCR8.12, HCR8.15, HCR8.16, HCR8.19, HCR8.20, HCR8.30/DCR8.12, DCR8.15, DCR8.16, DCR8.19, DCR8.20, DCR8.30.
10.	Do you need to issue interrogatories before defence/response?HCR8.34/DCR8.34.
11.	Security required for costs?HCR5.45/DCR5.48
12.	File admission of claim or cause of action?HCR15.16/DCR15.13
13.	If the plaintiff has filed a statement of claim, draft statement of defence. Requirements:HCR5.48, HCR5.17-HCR5.20/DCR5.50, DCR5.20 – DCR5.23 • Memorandum and address for service — HCR5.44/DCR5.47. • Heading — HCR5.13/DCR5.16
14.	If the plaintiff has filed a statement of claim, prepare statement of counterclaim where appropriate:HCR5.53, HCR5.54/ DCR5.55, DCR5.56 • Against Crown — HCR5.61/DCR5.6 • Against plaintiff and another (without leave within time for filing statement of defence) (amended heading) — HCR5.11, HCR5.57/ DCR5.14, DCR5.59No notice of proceeding is required unless there is a counterclaim against the plaintiff and another person: HCR5.57(4), HCR Form G 2/DCR5.59
15.	File statement of defence and statement of counterclaim (notice of proceeding required where counterclaim is against plaintiff and another party), or notice of response and notice of counterclaim.
16.	Serve documents in reply at plaintiff’s address for service between 9 am–5 pm:HCR6.1, HCR6.5, HCR6.6, HCR6.20/DCR6.1, DCR6.5, DCR6.6, DCR6.22.
17.	Serve counterclaim on added counterclaim defendant (if any):Subpart 1 of Part 6 of the High Court Rules 2016/Subpart 1 of Part 6 of the District Court Rules 2014

DA3Step 3. Interlocutory applications

DA3.1 Matters to consider

DA3.2 Tasks

DA3.3 Further reading

DA3.4 Next step

DA3.1 Matters to consider

In both courts the presiding judge will expect the parties to have filed any necessary interlocutory application before the conference.

At this early stage the interlocutory applications are likely to be directed to matters arising from the pleadings. Common applications can be:

Applications to join further parties.

Applications for particulars or more explicit pleadings. If you intend to file such an application, you should already have served the required notice under the r 5.21 of the High Court Rules 2016 or r 5.24 of the District Court Rules 2014.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

Inloc05 — Order for discovery.

SInloc05 — Sample order for discovery.

Inloc07 — Application for pre-commencement discovery by intending plaintiff.

SInloc07 — Sample application for pre-commencement discovery by intending plaintiff.

Inloc08 — Notice of application for discovery against non-party.

SInloc08 — Sample notice of application for discovery against non-party.

Inloc09 — Notice of application for further and better discovery.

SInloc09 — Sample notice of application for further and better discovery.

Inloc10 — Notice of interlocutory application for order for particular discovery.

CivDis02 — Application to strike out or stay whole or part of plaintiff’s or defendant’s claim or statement of defence.

CivDis03 — Notice of opposition by plaintiff/defendant to defendant’s/plaintiff’s application for order striking out or staying whole/part of claim/defence.

Consistent with the cooperation expectation, you should be filing the applications only if you have discussed them with your opponent and have failed to reach agreement.

If — at the time you draft the application for filing — the case management conference date has been allocated, you can pre-populate the notice of application with the same date and time in para 1 of HCR Form G 31 or DCR Form 17.

DA3.2Tasks

File any necessary interlocutory applications before the conference. Use as necessary:

Only file applications on matters about which you cannot reach agreement with your opponent.

Draft applications for filing in advance of the first case management conference date and serve them on the other parties before filing.

DA3.3 Further reading

(1)District Court Rules 2014

DCR 2014, r 5.5 Non-complying documents.

DCR 2014, r 5.24 Notice requiring further particulars or more explicit pleading.

DCR 2014, Form 17 Interlocutory application on notice.

DCR 2014, Form 19 Notice of opposition.

(2)High Court Rules 2016

HCR 2016, r 5.2 Non-complying documents.

HCR 2016, r 5.21 Notice requiring further particulars or more explicit pleading.

HCR 2016, Form G 31 Interlocutory application on notice.

HCR 2016, Form G 33 Notice of opposition.

DA3.4 Next step

Proceed to [DA4] (Step 4. Conference memoranda — general issues).

Step 4. Conference memoranda — General issues

DA4.1Matters to consider

Even if you and your opponent disagree on what orders should be made, you should still be in a position to settle a joint memorandum outlining what is in dispute and what therefore requires a judicial determination. A joint memorandum need not record agreement on all things so long as the scope of the disagreement is clear and neatly expressed in a short paragraph.

A comprehensive joint memorandum is good evidence that the parties can be trusted to move things along and that proper case preparation is under way. Conversely, separate memoranda (or no memoranda at all) are an early warning sign the judge needs to take a firm approach.

There is no prescribed manner for case management discussions. In most cases a telephone conversation is sufficient. However, in multiparty proceedings, a teleconference may be required. Online platforms such as Zoom or Microsoft Teams now allow for videoconferencing. If all parties are in the same locale, a face-to-face conference would obviate such expenditure. Alternatively, it may be sufficient to engage by email on a draft joint memorandum.

The case management conference regime is principally concerned with narrowing the issues and keeping the proceeding moving, not with having hearings for hearings’ sake; if the parties file a considered memorandum setting out directions sought by consent (and, if necessary, why), the presiding judge will often be content in the knowledge that the parties are taking care of the case and do not need intervention. The judge may simply make the directions sought on the papers and cancel the case management conference, thus keeping the costs down. Even if a case management conference is necessary, the time it will take up should be truncated as a result of cooperation by the lawyers.

This is also your opportunity to timetable the next steps in the proceeding in a way that takes into account your own current workload. It is a balancing act: the timetable should fit in with other proceedings you are committed to, but still move this proceeding on in a reasonable time frame. If you do not take this opportunity, you risk having a timetable imposed on you that takes little or no account of your current commitments, but that nonetheless must be complied with.

If agreement is reached, the joint memorandum is sufficient record of the fact.

If agreement is not reached, at the very least you should keep a decent file note of your attempts to agree; better yet, you should write to your opposing counsel recording your attempts to resolve the case management issues and of your opposing counsel's response or lack thereof; this is with a weather eye on future costs awards. You will need to file your own memorandum in this event, 10 working days ahead for the plaintiff, or five working days for the defendant. Separate memoranda must state what the parties have managed to agree on and what remains irreconcilable (and in the latter event, the reasons for the disagreement).

It is proper to record in your own memorandum that you made efforts to agree, but avoid going into detail. The judge is likely to be interested only in ascertaining that there is a dispute, rather than who is responsible for a failure to agree. It will suffice to write a short passage to the following effect:

“Counsel endeavoured to agree the terms of a joint memorandum but without success. This may need to be addressed on the issue of costs in due course.”

You have said all you need to say at this point in time. Resist the temptation to attach your correspondence to the memorandum. It risks a degeneration of the conduct of the litigation into a series of ad hominem allegations and counter-allegations; judges do not have the time or inclination to resolve such disputes at a case management conference, far less get the parties’ legal representatives to act like mature professionals.

If there has been a failure to reach agreement because one party has been unreasonable, that is properly addressed by costs, but at the appropriate juncture in the proceeding — not at a time-limited case management conference.

File the memorandum or memoranda in your litigation file under the Case Management tab in your litigation file. (See the module Gathering Information, and Analysis and Formulation of the Claim at [BC3] (Step 3. Keeping a litigation file).)

DA4.2Tasks

Discuss each agenda item with all parties well in advance of the deadline.

Identify and narrow agenda items in dispute.

Agree who is to draft the joint conference memorandum.

Circulate the memorandum for agreement/amendment.

File the conference memorandum with the court by the due date.

DA4.3 Next step

Proceed to [DA5] (Step 5. Conference memoranda — format).

Step 5. Conference memoranda — format

DA5.1Preliminaries

The memorandum is headed up in the truncated form for court documents other than the statement of claim.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

G01 — General heading for documents filed in proceeding.

DCR002 — General heading for documents filed in proceeding — Form 2.

Ascertain who the presiding judge is to be, as the front sheet should state:

“Next event date: [insert conference date]“Judicial Officer: Associate Judge Jones”

The memorandum should commence with a recitation recording whether it is a joint or separate memorandum:

“THIS MEMORANDUM is jointly filed by [name the parties by description who have contributed] for the first case management conference. The [party, e.g. Third Defendant] has filed/will file a separate memorandum.”

DA5.2Conference agenda format — High Court

Unless the context makes it more understandable to start with another topic, the memorandum should follow the conference agenda set out in the order of r 7.3 and sch 5 of the High Court Rules 2016 as follows:

“Issues“1Resolution and refinement of the issues, and as a consequence whether the pleadings require amendment.“2Whether additional parties should be joined.“3Whether this proceeding has been appropriately categorised and is either an ordinary defended proceeding or a complex defended proceeding.“Discovery and other interlocutory applications“4The scope, terms, and timetable for any discovery.“5If any interlocutory applications have been filed or will be filed, whether they can be heard and disposed of at the case management conference.“Readiness for trial“6Is the case sufficiently ready for a fixture date to be allocated in the near future?“7If there are still outstanding issues, whether a further case management conference or an issues conference should be timetabled.“Fixture or hearing“8If the proceeding is ready to go for a hearing or a trial,—“(a)when should the close of pleadings date be?“(b)should there be a pre-trial conference?“(c)what is the estimated length of trial? (The Judge will estimate this by the number of witnesses and the estimate of duration of their testimony.)“(d)what timetable is required for written briefs?“(e)is expert evidence required and, if so, what are the proposals for that evidence, including prior exchange, whether expert witnesses should conference, and how expert evidence is to be given (ie, in the normal course of a party’s case, consecutively, or by way of panel)?“(f)are any special resources or requirements needed for the hearing?“(g)is an electronic common bundle and/or an electronic casebook to be prepared?“(h)can the proceeding be placed on a short-notice list or put down as a back-up fixture?“(i)is alternative dispute resolution suitable to try to facilitate settlement prior to trial?“(j)what is the categorisation of the proceeding in relation to costs?“Other“9Any other matters, provided that those matters have been discussed between the parties at least 5 working days before the conference.”

Even if some of the agenda items are not relevant to the case, it is better to retain the agenda heading with a paragraph explaining why the issue does not arise. For example, if both parties agree that the case is not ready for a hearing date:

“Fixture or hearing“8.1The parties agree it would be premature to set a date for the close of pleadings. This is due to the outstanding applications in respect of both parties’ pleadings.”

DA5.3 Conference agenda format — District Court

The agenda is shorter for the first District Court case management conference. Again, each topic should be addressed in turn as set out in r 7.2 and pt A of sch 3 of the District Court Rules 2014:

(a) whether initial disclosure has been provided;

(b) whether the pleadings and the principal documents disclosed with them adequately identify the issues;

(d) whether additional parties should be joined;

(e) the categorisation of the proceeding in relation to costs; and

(f) any other matters (including the hearing and, if practicable, disposal of outstanding interlocutory applications).

Additionally, the judge will if possible decide whether the proceeding should go to a short trial or judicial settlement conference. It may be that a decision cannot be made on that issue if there are outstanding agenda items that require prior resolution.

You will be expected to express your reasoned views on which is the better of the two options, based on the nature of the dispute, the likely evidence and the number of witnesses.

For considerations relevant to a short trial mode decision, see the module District Court — Judicial Settlement Conference and Second Case Management Conference at [DB4] (Step 4. Short District Court trial — case management considerations).

DA5.4Tasks

Draft your conference memorandum (following the conference agenda formats set out in r 7.3 and sch 5 of the HCR 2016, and in r 7.2 and sch 3 of the DCR 2014).

If appearing in the District Court, be prepared to tell the Court why your preferred litigation path is either a judicial settlement conference or short trial.

DA5.5 Further reading

(1)District Court Rules 2014

DCR 2014, r 7.2 First case management conference.

DCR 2014, sch 3 pt A Matters for consideration at first case management conference.

(2)High Court Rules 2016

HCR 2016, r 7.3 First case management review.

HCR 2016, sch 5 Matters for consideration at case management conference.

DA5.6 Next step

Proceed to [DA6] (Step 6. First case management conference — before the judge arrives).

Step 6. First case management conference

Matters to consider

Before the judge comes in, work out in your own mind where and when the proceeding ought to go next. Case management is event-driven, so ask yourself: from your point of view, what is the next appropriate event? Is it a further case management conference? Is it to a hearing for an outstanding interlocutory application? Is it even to trial?

If applications have been filed, it is more likely than not they will be given a substantive hearing date rather than heard on the spot. That said, the judge may wish to deal with any straightforward application there and then, if proper notice has been given and a response filed, and you will need to prepare accordingly.

If the application is to be adjourned it will be with a timetable of directions for outstanding compliance and for filing submissions.

If you are asking for either a further case management conference or a defended interlocutory application hearing, ask the case manager ahead of time for a hearing date and discuss that with your opposing counsel (ideally before the conference date itself, but certainly before the judge enters the courtroom).

You want to be able to give the judge a specific date for the next event when everyone is available. An interlocutory application will need a time estimate, which you should also discuss with the other parties’ lawyers.

If you know what sort of event is going to eventuate, it is an irritating waste of court time to ask for a further hearing without specifying a date. The judge will have to ask the registrar in court for a suitable date. The registrar will have to consult the roster. All counsel will have to consult their diaries to confirm availability. Court time goes ticking by unproductively.

If there are a number of possible next events depending on the judge’s decision on how to proceed, ask for suitable dates for all.

If the registrar cannot accommodate this, so be it. You can advise the judge that a future date has been sought but it is not practicable to allocate one and the reason it cannot be done. In those circumstances the judge will adjourn to a date to be advised by the case manager.

This shows forethought on your part and a practical working knowledge of how courts operate. It is always gratefully received by the Bench.

DA6.2 Tasks

Identify whether any interlocutory application filed is capable of disposition at the case management conference or whether a hearing date is required.

Try to agree a timetable for filing any supporting documents or other interlocutory application with the other parties.

If possible, obtain a hearing date from the registrar in court for the application or a further case management conference.

In District Court proceedings where a short trial may be directed, ascertain from the registrar whether a trial date could be allocated on the spot.

DA6.3 Next step

Proceed to [DA7] (Step 7. First case management conference — the hearing).

Step 7. First case management conference — The hearing

DA7.1 Matters to consider

All conferences are in court-for-chambers appearances rather than open court (that is, in a courtroom but with no right of access by the public, other than the parties themselves), so gowns are not worn in the High Court.

The plaintiff’s counsel will be expected to speak first, after each lawyer has entered an appearance on behalf of their respective clients. You should outline any developments subsequent to the filing of memoranda and then set out what you think ought to happen next and why. The defendants follow in the order named in the proceeding, unless they have agreed on a different order.

If there has been previous non-compliance with case management requirements, that should be prefaced with an apology and an explanation. Non-compliance happens. Explained non-compliance is likely to be met with more tolerance, but not necessarily so.

As counsel appearing, you carry the responsibility for the proceeding, whether the fault is yours or not. Whether you are a staff solicitor appearing for your principal or an agent for another firm, you should anticipate the judge will expect you to have a sufficient grasp of the proceeding and the issues to make the case management conference meaningful.

Extra care needs to be taken if the fault is that of your client. You are constrained to act in your client’s best interests and blaming your client for not doing something you directed them to do risks breaching your ethical obligations with all that can entail.

In the High Court, the judge is empowered to give directions to secure the just, speedy and inexpensive determination of the proceeding, including the fixing of timetables and directing how the hearing or trial is to be conducted (High Court Rules 2016, rr 1.2 and 7.2). There is no direct corresponding rule in the District Court Rules 2014, although similar powers are to be inferred from the case management purposes provisions of 7.1(2) of the DCR 2014.

This is a very broad power and can lead to the effective determination of matters that could have been the subject of an interlocutory application. This can be without much, if any, notice; an issue is live if the judge thinks it is, be that a point in relation to the pleadings or otherwise. If issues that require determination are foreshadowed in the memoranda, be prepared to address them at the conference, or explain why an application on notice with full submissions and so on should be required.

The conference will result in a minute by the presiding judge recording the events and the consequential directions. This is usually emailed as a PDF document to the parties by day’s end in the High Court.

District Court registries do not have anything close to the same resourcing as the High Court, so you may not receive a copy of the judge’s minute that day (or at all). You need to make your own note of the timetable.

If and when you receive the minute, cross-check the two to ensure that your understanding of the directions given is the same as the court record. File the minute in your litigation file under the Orders tab. (See the module Gathering Information, and Analysis and Formulation of the Claim at [BC3] (Step 3. Keeping a litigation file).)

DA7.2 Tasks

Diarise any future dates for compliance with timetabling orders.

Develop a work plan for compliance with directions.

File any judicial minutes in your litigation file.

Report to the client on progress and steps to be taken.

DA7.3 Further reading

(1)District Court Rules 2014

DCR 2014, r 1.3 Objective.

DCR 2014, r 7.1 Proceedings subject of case management.

(2)High Court Rules 2016

HCR 2016, r 1.2 Objective.

HCR 2016, r 7.2(3) Case management conferences generally.

DA7.4 Next step

Proceed to [DA8] (Step 8. First case management conference — close of pleadings date).

Step 8. First case management conference — Close of proceedings

DA8.1 Matters to consider

The judge may well wish to set a date for the close of pleadings at the first High Court case management conference. This may well occur at the second District Court case management conference. (See the next module District Court — Judicial Settlement Conference and Second Case Management Conference starting at [DB1].)

This is a date of critical significance to the proceeding. Once the pleadings have closed, no party may take a further step without seeking the leave of a judge. You cannot file an amended pleading without leave. You cannot make a further interlocutory application without leave. Your room for manoeuvre is very heavily circumscribed.

Again the need to have your proposed trial evidence marshalled to a high degree is thrown into stark relief.

If the pleadings are not clear or the outcome of discovery may have a significant bearing on the case, it is best to resist setting a close of pleadings date until those issues have been cleared up. Even if there are filed applications in relation to the pleadings it may take an extended period to resolve them, with follow-up preparation needed as a result.

Closing the pleadings before the proceeding is ready for trial can put you under considerable pressure.

If you think there are significant interlocutory to-ings and fro-ings needed, explain your position and why it would be premature to set a date for the close of pleadings. Bear in mind, however, the underlying rubric on which judges act is that few things concentrate the mind better than a looming deadline. Without good and sufficient reason, asking to defer the close of pleadings date may simply appear to be a lack of diligence on your part. You will need to offer a considered and feasible timetable with a further conference date following its completion as a bare minimum.

In the High Court, once a date for hearing or trial is allocated, the close of pleadings date — if a particular close of pleadings date is not fixed by the judge — is the later of:

the date that is 60 working days before the hearing or trial date allocated; and

the date on which the hearing or trial date is allocated.

DA8.2Tasks

If appearing in High Court proceedings:

Ensure that you are prepared for the judge to set a date for close of pleadings at the first case management conference.

Ensure that you have detailed knowledge of your proposed trial evidence.

Resist a close of pleadings date if the pleadings are not clear or the outcome of discovery will have a significant bearing on the case.

Be prepared to explain why outstanding interlocutory matters make it premature to set a close of pleadings date.

Offer the court a considered and feasible timetable with a further conference date, if you wish to resist a close of pleadings date.

DA8.3 Next step

Proceed to the next module District Court — Judicial Settlement Conference and Second Case Management Conference (starting at [DB1]).

Step 1. District Court — judicial settlement conference

DB1.1 Matters to consider

The flow path for civil litigation in the District Court now means that a judicial settlement conference (JSC) will be inevitable before a proceeding is considered ready for a trial, either by a simplified trial or a full trial. Rule 7.3 of the District Court Rules 2014 (DCR 2014) sets out the purpose of the conference and provides for the proceeding to be discontinued once it is endorsed as settled.

A JSC is not a trial. However, by the time the parties have filed pleadings and provided initial disclosure, there will be a substantial amount of material available to assist the judge presiding over a JSC.

Rule 7.3(3) of the DCR 2014 requires the parties to file a summary of the evidence in the form of “will say” statements from the principal witnesses and from any experts. These should not be a full narrative of the factual matters, but kept to one page for each witness and reduced to bullet points if necessary. Accompanying the “will say” documents should be a statement of issues. Again, this should not exceed one page and is due 10 working days before the JSC.

Documentary evidence may be used at a JSC. Most, indeed all, of this documentary evidence should have been identified at the initial disclosure stage; but if there are further critical documents, these should be attached.

The lawyers are probably the least important persons at the JSC. The JSC is a negotiation between the parties. It is therefore critical that the decision maker for each party to the proceeding is present at the JSC. There is no point in simply sending a lawyer to represent a party even though that lawyer may have authority to settle. Apart from the personal risk to the lawyer in terms of professional liability, negotiating through the lawyer limits the chances of success, as it limits the ability during the JSC to get to the real issues between the parties; the cause of action may have little bearing on their actual grievances. The process can also be one of necessary catharsis, which may be sufficient to get the parties to a position where they can resolve the dispute without further recourse to the courts.

In the District Court, it is increasingly more common for experts to attend JSCs. If the findings of the expert have a direct effect on the ability to settle, the expert should be present.

There is no set procedure at a JSC. Judges will often open by stating the purpose of the JSC and laying down any ground rules. They will remind the parties of the confidential nature of the JSC and the “without prejudice” status of the discussions. Judges may also advise the parties that if the matter does not settle they cannot preside over any future trial without the consent of all parties at the JSC unless the only matter for resolution is a question of law.

The plaintiff is usually invited to open the dialogue. The defendant may then respond. Whether the opening exchanges involve counsel or the actual litigants will depend on the circumstances. Breaks are often taken so each side may consider and reflect. Further joint sessions and negotiations would then ensue. These can take many forms and there is no “correct” procedure, save the normal rules of courtesy and propriety. This must continue even though the JSC is often informal — the case is still in a court and presided over by a judge. Some judges will require full formalities, and others may use first names. The initiative for this informality should always come from the judge and not just be assumed.

The nature of a JSC is such that emotions may run high, and the lawyer must keep control of a client so that the behaviour does not interfere with the proper negotiations and discussions.

If the JSC does not resolve the proceeding, it must be listed for a second case management conference.

DB1.2Tasks

Prepare “will say” statements for your principal witnesses.

Prepare a statement of issues.

Meet with the client beforehand to discuss the JSC process.

File and serve the statements.

DB1.3Further reading

(1)District Court Rules 2014

DCR 2014, r 7.3 Judicial settlement conference.

Step 2

DB2.1 Overview

The District Court second case management conference agenda is similar to the first case management review in the High Court, but contains more detail, and is squarely directed towards trial.

Again, there is the requirement of a joint memorandum (at least 10 working days before the conference) or separate memoranda (10 working days before the conference for plaintiffs and five working days before the conference for defendants).

In addition to the conference agenda, r 7.4(7) of the District Court Rules 2014 highlights the imperative of District Court case management:

“The second case management conference may be adjourned if the Judge declines to certify that the proceeding is ready for allocation of a hearing or trial date by the Registrar.”

The subtext of this rule is that, at the second case management conference, the judge will be looking to set the proceeding down and make trial directions. The judge will need a good reason not to do so. If you represent the party trying to resist that, have that good reason to hand, as without a cogent explanation it begins to look like foot-dragging.

DB2.2Second case management conference agenda

Insofar as there are first case management conference issues outstanding, they will be addressed in the agenda at the second case management conference which will be set out as follows:

Previous matters

(1) Any of the matters to which Part A of the case management schedule applies.

Mode of trial

(2) Whether a short trial, simplified trial or a full trial is required.

Issues

(3) Whether the pleadings require amendment so as to identify the issues.

Parties

(4) Whether additional parties should be joined.

Discovery and other interlocutory applications

(5) The scope, terms, and timetable for any discovery additional to discovery previously agreed or ordered.

(6) If any interlocutory applications have been filed or will be filed, whether they can be heard and disposed of at the case management conference.

(7) Whether the listing and exchange protocol in pt 2 of sch 9 of the High Court Rules 2016should apply.

Readiness for trial

(8) Whether the case is ready for a fixture date to be allocated.

(9) Whether a further case management conference or an issues conference should be timetabled.

Fixture or hearing

(10) If the proceeding is ready for trial;

(a) the close of pleadings date;

(b) the estimated duration of the trial;

(d) whether expert evidence is required and, if so, what are the proposals for that evidence (including prior exchange and how the witnesses are to be heard);

(e) any special resources or requirements needed for the hearing;

(f) whether there are any reasons why the proceeding cannot be set down as a back-up fixture; and

(g) the categorisation of the proceeding in relation to costs.

(11) If the proceeding is being or has been allocated a hearing or trial date:

(a) whether background facts can be agreed to avoid hearing or contested evidence;

(b) the size, contents, and format of the agreed bundle of documents;

(d) whether it will be helpful to direct the provision of lists of enactments and cases likely to be referred to; and

(e) whether any oral evidence direction should be made under r 9.10 of the DCR 2014.

Other

(12) Any other matters, provided that those matters have been discussed between the parties at least five working days before the conference.

As with the first High Court case management review, the parties must discuss the scope of a discovery order, if any, and the discovery checklist no less than 10 working days before the conference.

If there is a modification to the listing and exchange protocol, the court needs to be advised that this modification has occurred, but not the variation itself. It follows that both sides should record this agreement in writing.

Again the discovery order will take the form of a judge’s minute and does not require sealing, unless it has to be served on a non-party.

DB2.3 Tasks

Discuss each agenda item with all parties well in advance of the deadline.

Identify and narrow agenda items in dispute.

Agree with opposing counsel on who is to draft the joint conference memorandum.

Circulate the memorandum for agreement/amendment.

File the conference memorandum with the Court by the due date.

Discuss the scope of any discovery order and the discovery checklist at least 10 working days before the conference.

DB2.4 Further reading

(1) District Court Rules 2014

DCR 2014, r 7.4 Second case management conference.

DCR 2014, sch 3 pt B Matters for consideration at second case management conference.

(2 )High Court Rules 2016

HCR 2016, sch 9 pt 2 Listing and exchange protocol.

DB2.5 Next step

Proceed to [DB3] (Step 3. Determining the District Court trial mode).

Step 3

DB 3.1Overview

The District Court trial mode must be determined at the second case management conference. Even at this stage, the short trial remains an option.

The rules provide non-exhaustive guidance for determining trial mode.

In deciding the appropriate mode of trial, the court may have regard to the following:

the number of parties;

the complexity of the issues;

the amount at stake;

proportionality;

the nature of the action;

party requests; and

any other matter the court considers relevant.

Obviously, the simpler the issues and the fewer people involved, the more likely it is that one of the streamlined forms of trial will be chosen.

DB3.2Short trial

The short trial is intended for claims where the court considers that one or more of the following apply:

the case can come to a hearing quickly;

the issues are relatively uncomplicated or a modest amount is at stake; and/or

the trial time is not likely to exceed a day.

DB3.3Simplified trial

The simplified trial is intended for claims where the court considers that one or more of the following apply:

the duration of the hearing is not likely to exceed three days;

there is some complexity raised by the issues;

the amount of money involved is more than modest; and/or

one or more expert witnesses will be giving evidence.

The parties will be expected to express a reasoned view on trial mode, but in the end the matter is one for the judge to determine. Critical to any assessment of trial mode is the number and nature of witnesses to be called. It therefore follows you should know that by now.

The short and simplified trials have restrictions on duration and evidence and short compliance timetables. Short trial directions run from the date of the trial mode decision, whereas simplified directions work back from an allocated trial date.

In both cases, time for leading evidence, cross-examination, re-examination and submissions is limited. The Court has the discretion to extend the time available, but again time requirements of the case feed into the mode decision.

If you apprehend that the time requirements for your case, or that of your opponent’s, is at significant variance with the allocation under the rules, this will inform your submissions to the judge on the mode decision.

DB3.4 Tasks

In consultation with the other parties, assess the time estimate for giving evidence and submissions.

Assess the need or otherwise to call expert evidence.

Assess your ability and the client’s ability to comply with a short trial timetable. (See [DB4] (Step 4. Short District Court trial — case management considerations) below.)

Assess your ability and the client’s ability to comply with a simplified trial timetable. (See [DB5] (Step 5. Simplified District Court trial — case management considerations) below.)

DB3.5 Next step

Proceed to [DB4] (Step 4. Short District Court trial — case management considerations).

Or, if applicable, proceed to [DB5] (Step 5. Simplified District Court trial — case management considerations)

Step 4

DB4.1 Matters to consider

The judge would make a short trial direction in the knowledge or expectation the proceeding is practically ready to go, subject to refining the form of the witnesses’ evidence and the documents to be produced.

Evidence is on affidavit and both sides need to file their affidavits within 15 working days of the short trial direction. The assumption is that the affidavits will contain the full content of the witnesses’ evidence.

The plaintiff must prepare the common bundle and file and serve it 10 working days later.

Whilst it may be assumed that the bundle in a short trial will not be extensive, bundle preparation requires cooperation and discussion, which can take time.

If you have concerns about your ability to comply with such a tight time frame, this will inform your submissions on trial mode. You can expect short shrift if those concerns derive from an apparent lack of preparation, however. Submissions on this issue need to be framed with care.

As a result of your concerns, it may be that a simplified trial is a better option, or alternatively for the judge to modify the short trial timetable under r 1.23 of the District Court Rules 2014(the rule for extending and shortening time) to allow a longer lead time for compliance.

DB4.2 Tasks

Ensure that your proceeding is ready to go to trial.

File your affidavits with the required time limit.

If you are acting for the plaintiff, prepare the bundle of documents in cooperation with your opponent and file and serve it within the required time limit.

Ensure that you give the court good reasons if you are unable to comply with the timelines for the trial mode.

DB4.3 Further reading

(1)District Court Rules 2014

DCR 2014, r 1.23 Extending and shortening time.

DCR 2014, r 10.3 Timetable for short trial.

DCR 2014, r 10.4 Features of short trial.

DB4.4 Next step

Proceed to the module Trial — District Court (Short and Simplified Trials) (starting at [FA1]).

Or, if applicable, proceed to [DB5] (Step 5. Simplified District Court trial — case management considerations).

Step 5

DB5.1 Matters to consider

The simplified trial directions work back from the trial date.

The plaintiff is required to file affidavit evidence 45 working days before the trial date, the defendants 30 working days beforehand, and other parties 15 working days beforehand. Each party is limited to one expert witness per specialist discipline (e.g. valuer, crash analyst, and so on); any more requires a leave application.

Again, the plaintiff must prepare the common bundle with the cooperation and assistance of the other parties. The common bundle must be filed and served no later than 10 working days after the date when the last affidavits of evidence are served. Rule 10.7(4) of the District Court Rules 2014 rather obliquely provides:

“The other provisions of these rules that relate to interlocutory applications, evidence, and the conduct of a trial apply to proceedings to be dealt with by a simplified trial only to the extent that the Judge so orders.”

The practical effect of this rule is that it will be for a judge to determine whether interlocutory applications are ordinarily available or possibly even whether the discovery rules may be used in a simplified trial.

If you have concerns about such issues, they must be raised in the joint or separate memorandum on the issue of mode of trial.

DB5.2 Tasks

File affidavit evidence within the required time frames.

If you are acting for the plaintiff, prepare the bundle of documents in cooperation with your opponent and file and serve it within the required time limit.

If expert witnesses are to give evidence, ensure that you engage only one expert witness per specialist discipline.

DB5.3 Next step

Proceed to the module Trial — District Court (Short and Simplified Trials) (starting at [FA1]).

Or, if applicable, proceed to [DB6] (Step 6. Full District Court trial — case management considerations).

DB6.1 Matters to consider

Unless the judge directs a short or simplified trial, the proceeding defaults to the full trial mode.

Unless the parties have attended to discovery informally and dispense with a discovery order, it is likely that the judge will adjourn the case management conference with a discovery order.

The case will be timetabled for discovery compliance and a further conference date following the timetable’s completion.

DB6.2 Further reading

(1)District Court Rules 2014

DCR 2014, r 10.8 Full procedure applies to full trial.

DB6.3 Next step

Proceed to the next module Discovery and Inspection of Documents (starting at [DC1]).

Discovery — General

DC1.1 Introduction

The discovery phase is governed by an express requirement that the parties cooperate. The rules are designed to ensure each party discloses documents held which assist an opposing or other party’s case in a manner that meets the needs of the particular proceeding.

There is a particular emphasis on proportionality in discovery so that the amount of time it requires bears a relationship with the nature and significance of the dispute. In a dispute of modest proportions in dollar terms, the judge will take some persuading that a full discovery order is necessary. If highly relevant documents may be revealed, greater time and effort is justified. If documents will be of only marginal assistance, their discovery is more likely to be regarded as disproportionate.

Any party asking for discovery that appears to be out of proportion to the apparent needs of the proceeding should, at a bare minimum, provide a good explanation as to why that is necessary. The judge will probably require a foundation for the proposition that the documents or classes of documents are likely to exist and how they would help.

Tool

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

Inloc01A — Discovery (a discovery checklist).

DC1.2 Discovery obligations

Discovery obligations exist even before the proceeding is commenced. If litigation is reasonably contemplated, prospective parties are obliged to preserve potentially discoverable documents and clients should be advised in writing of this obligation straight away.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

Preserv02 — Letter to client advising of obligation to retain documents.

SPreserv02 — Sample letter to client advising of obligation to retain documents.

If the judge makes a discovery order, the order will inevitably include in some form a requirement to hand over documents that hurt the client’s case. Documents that adversely affect a party’s own case or assist an opponent’s must be disclosed.

Advising the client of this fact can require tact, as clients may find it hard to understand why they should be compelled to undermine their own position. It is not unheard of for civil clients to develop significantly selective memories at this point as to what documents exist and who has them. This problem can be avoided by obtaining as much documentation as possible from the client before the decision is made to file a claim or a defence. In this way, you are in a position to inform your client that in the course of the proceeding a particular document will have to be disclosed to your opponents in due course. The client is put in the position of weighing up the consequences of disclosure against the prospect of litigation or settlement and deciding what course to take as a result.

Your obligations are clear. If you know of the existence of a discoverable document that the client refuses to give you or permit you to disclose, you can no longer act. In addition to being contempt of court, wilful misconduct in discovery is an abuse of the court’s processes that will result in a significant costs award at least, if it comes to light. It may cause the premature end of the litigation itself.

A practitioner who permits that to take place can expect significant professional sanctions to follow, from a Standards Committee or worse.

The parties are required to use reasonable efforts to search for discoverable documents. What is reasonable of course will depend on the scope of the order and the practical realities of trying to retrieve information that may have been archived, and then not well. A judge will make this determination if it becomes the subject of challenge based on the criteria in r 8.14(2) of the District Court Rules 2014 (DCR 2014).

The discovery obligation is a continuing one to judgment. If in the course of complying with a tailored discovery order a party becomes aware of a document that it is not required to discover under the tailored discovery order but that adversely affects that party’s own case or another party’s case or supports another party’s case, that party must discover the document.

The rule would tend to suggest its application is limited to cases where there is a tailored order. This may mean there is no such obligation if the parties are attending to discovery informally. Whether there is disclosure in those circumstances may be dictated by client’s instructions and personal honour.

If you discover that an affidavit of documents is inaccurate in any way, the inaccuracy needs to be rectified promptly, either by way of corrected or supplementary affidavit.

DC1.3 Tasks

At an early stage, brief the client on the discovery process and its obligations including:

what is a discoverable document and what is meant by being in the client’s control (see [DC2] (Step 2. Discovery orders — standard or tailored discovery) below); and
the limits on the use of discovered documents (see [DC6] (Step 6. Use of discovered documents) below).

Record your advice on discovery obligations in a letter to the client, preferably countersigned by the client as received and understood. Use as necessary:

Procure from the client and others all relevant documents, whether discoverable or not.

From the documents obtained from the client, assess which are discoverable and which are not and prepare a list.

Ensure that you impress upon your client the need to preserve all potentially discoverable documents including those that may damage your client’s case.

Ensure that, if you discover that an affidavit of documents is inaccurate, this problem is rectified promptly.

DC1.4 Further reading

(1)District Court Rules 2014

DCR 2014, r 8.2 Co-operation.

DCR 2014, r 8.3 Preservation of documents.

DCR 2014, r 8.14(2) Extent of search.

(2)High Court Rules 2016

HCR 2016, r 8.2 Co-operation.

HCR 2016, r 8.3 Preservation of documents.

HCR 2016, r 8.14(2) Extent of search.

DC1.5 Next step

Proceed to [DC2] (Step 2. Discovery orders — standard or tailored discovery).

Step 2. Discovery orders — Standard or tailored discovery

A judge may dispense with discovery if satisfied that the proceeding can justly be disposed of without it. In practice a judge is not likely to so direct unless the parties agree that neither standard nor tailored discovery is required. The rules increasingly favour electronic discovery and inspection, so familiarity with the provisions and the technology for their implementation is a must.

DC2.1 Standard discovery

A standard discovery order requires each party to disclose:

documents on which that party relies;

documents that adversely affect that party’s own case;

documents that adversely affect another party’s case; and

documents that support another party’s case.

The main documents on which each party relies should of course have been disclosed under the initial disclosure rules.

The obligation extends to documents that are or have been in the party’s control. It is important to note that the concept of control is broad. “Control”, in relation to a document, means:

possession of the document; or

a right to possess the document; or

a right, otherwise than under the rules, to inspect or copy the document.

“Document” is equally wide in its scope and means:

any material, whether or not it is signed or otherwise authenticated, that bears symbols (including words and figures), images or sounds, or from which such symbols, images or sounds can be derived, and includes:

a label, marking or other writing that identifies or describes a thing of which it forms part, or to which it is attached;
a book, map, plan, graph or drawing;
a photograph, film or negative; and

information electronically recorded or stored, and information derived from that information.

DC2.2 Tailored discovery

Tailored discovery is anything that is not standard discovery and may be more or less than standard discovery, as the justice of the case requires. The scope and nature of tailored discovery is principally a matter for the parties to agree amongst themselves, but the rules provide guidance in framing the inquiry.

DC2.3 Non-party discovery

Bear in mind that non-parties may hold relevant information about the case. By way of example, in cases involving allegations of dishonesty, the New Zealand Police may hold a list of criminal convictions for the person in question, which would prima facie be amenable to a non-party discovery application under r 8.21 of the High Court Rules 2016 and r 8.21 of the District Court Rules 2014.

DC2.4 Further reading

(1) District Court Rules 2014

DCR 2014, r 1.4 Interpretation.

DCR 2014, r 8.5 Discovery orders to be made at second case management conference.

DCR 2014, r 8.9 Presumption as to tailored discovery.

DCR 2014, r 8.21 Order for particular discovery against non-party after proceeding commenced.

(2) High Court Rules 2016

HCR 2016, r 1.3 Interpretation.

HCR 2016, r 8.5 Discovery orders to be made at case management conferences.

HCR 2016, r 8.9 Presumption as to tailored discovery.

HCR 2016, r 8.21 Order for particular discovery against non-party after proceeding commenced.

HCR 2016, sch 9 cl 3(2) Tailored discovery.

DC2.5Next step

Proceed to [DC3] (Step 3. Affidavit of documents).

Step 3. Affidavit of documents

DC3.1Matters to consider

The person swearing the affidavit of documents should be the person who has been ordered to make discovery. Normally this person is a party to the proceeding, although the rule would also apply to a non-party who has been made the subject of a discovery order.

In the case of a corporate entity, the person must have knowledge of the facts deposed and be authorised to make the affidavit.

The affidavit must:

refer to the discovery order under which the affidavit is made;

state that the party understands the party’s obligations under the order;

give particulars of the steps taken to fulfil those obligations;

state the categories or classes of documents that have not been searched, and the reason or reasons for not searching them;

list or otherwise identify the documents required to be discovered under the order in a schedule; and

state any restrictions proposed to protect the claimed confidentiality of any document.

Forms that may be used are HCR Form G 37 and DCR Form 22.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

G37 — Affidavit of documents.

DCR022 — Affidavit of documents — Form 22.

Preserv04 — Affidavit of documents.

SPreserv04 — Sample affidavit of documents.

Under

r 8.16 of the District Court Rules 2014

, the schedule detailing the documents must list or identify which documents:

are in the control of the party giving discovery and for which the party does not claim privilege or confidentiality;

are in the control of the party giving discovery for which privilege is claimed, stating the nature of the privilege claimed;

are in the control of the party giving discovery for which confidentiality is claimed, stating the nature and extent of the confidentiality;

have been, but are no longer, in the control of the party giving discovery, stating when the documents ceased to be in that control, and what have become of them; and

have not been in the control of the party giving discovery but which that party knows would be discoverable if that party had control of them.

This is a significant obligation and the need to search for documents falling within the scope of the order should not be understated, particularly in litigation that is “document heavy”.

Even if you have obtained the bulk of relevant documents before filing a proceeding, it is prudent to meet with the client to discuss the full extent of the search and disclosure obligations. You should follow this meeting up with a detailed reporting letter repeating your advice.

Request a written report from your client as to the nature and extent of their efforts to locate documents.

Unless the court otherwise orders, the affidavit of documents is due from all parties 20 working days after the making of the order. Part of your discovery discussions with the other parties should address time-frames for realistic compliance.

DC3.2Tasks

Ascertain and diarise the date for filing the affidavit of documents.

Compile the affidavit from the list of discoverable documents prepared earlier.

Detail in the affidavit the steps taken to comply with discovery obligations. Use as necessary:

In the case of a corporate client, ensure the deponent of the affidavit of documents is duly authorised to swear the affidavit.

DC3.3Further reading

(1)District Court Rules 2014

DCR 2014, r 8.15 Affidavit of documents.

DCR 2014, r 8.16 Schedule appended to affidavit of documents.

DCR 2014, r 8.24 Who may swear affidavit of documents.

DCR 2014, Form 22 Affidavit of documents.

(2)High Court Rules 2016

HCR 2016, r 8.15 Affidavit of documents.

HCR 2016, r 8.16 Schedule appended to affidavit of documents.

HCR 2016, r 8.24 Who may swear affidavit of documents.

HCR 2016, Form G 37 Affidavit of documents.

DC3.4Next step

Proceed to [DC4] (Step 4. Non-compliance with discovery obligations).

Step 4. Non-compliance with discovery obligations

DC4.1 Failure to discover

If a document is not discovered, it may be used in court only with the consent of the other parties or with leave.

You do not want to have to seek other parties’ consent or the leave of the court to use an undiscovered document. Late and un-notified additions to the evidence reek of poor preparation. Even if leave is forthcoming, there may well be costs consequences.

As part of your trial checklist (see the module Trial — District Court (Short and Simplified Trials)at [FA17] (Step 17. Final preparation tasks — plaintiff’s checklist) and [FA18] (Step 18. Final preparation tasks — other party checklist)), make sure that all documents you want to rely on at trial have been properly disclosed.

DC4.2 Enforcement of discovery

The court has the power to order a party to file an affidavit as to compliance with the disclosure obligations.

This will arise if it appears to a judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered one or more documents or a group of documents that should have been discovered.

The court can order the filing and service of an affidavit stating:

whether the documents are or have been in the party’s control; and

if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control and what has become of them.

If the documents are in the person’s control, the court will direct that person to make those documents available for inspection by the other parties under r 8.27 of the District Court Rules 2014.

An adverse costs award is a near certainty if the documents exist and there has been a failure to disclose them. The defaulting party would at least have to show reasonable search efforts were made but that they did not disclose the documents’ existence.

DC4.3 Tasks

Review the discovered documents with the client to ascertain whether there is undisclosed material.

Discuss any apparent non-disclosure with the discovering party’s lawyer to ascertain whether there is undisclosed material.

Record in writing any agreement to remedy non-disclosure, countersigned by the discovering party’s lawyer.

If there is no agreement, assess what evidence there is to establish there are grounds for believing the party has not disclosed one or more discoverable documents.

If the evidence is sufficient to establish there is a reasonable probability that further documents exist which were not disclosed in the affidavit of documents, prepare, file and serve an affidavit establishing that fact.

Request that the judge convene a further case management conference or file an application on notice. (See the module Interlocutory Applications at [DE9] (Step 9. Enforcement of interlocutory orders).)

DC4.4Further reading

(1)District Court Rules 2014

DCR 2014, r 8.19 Order for particular discovery against party after proceeding commenced.

DCR 2014, r 8.27 Inspection of documents.

DCR 2014, r 8.31 Effect of failure to include document.

(2)High Court Rules 2016

HCR 2016, r 8.19 Order for particular discovery against party after proceeding commenced.

HCR 2016, r 8.27 Inspection of documents.

HCR 2016, r 8.31 Effect of failure to include document.

DC4.5 Next step

Proceed to [DC5] (Step 5. Inspection of documents).

Step 5. Inspection of documents

DC5.1 Matters to consider

The requirement to make documents available for inspection arises immediately the affidavit of documents is filed and served.

The presumption is that inspection will be electronic under the provisions of the listing and exchange protocol, unless its application has been modified by the terms of the discovery order.

Even if electronic disclosure is the mode of inspection, a party may by written notice require the original to be produced for inspection.

If hard copy inspection is required, the rules specify that documents are to be made available for copying. That is not a requirement to provide copies however. The rule-mandated obligation to cooperate continues so the court will expect the parties to resolve the provision of documents in a sensible and cost-effective manner.

Depending on the number of documents sought to be copied, the other party may agree to do the copying at an agreed rate per copy. If it is larger and would take staff a significant amount of time, it is more likely you can agree a time to attend on your opponent’s office with a block booking of photocopier time.

Only in the worst of cases will it be necessary to apply for an order to facilitate inspection under r 8.29 of the District Court Rules 2014 and r 8.29 of the High Court Rules 2016. The judge is not likely to be impressed by either side, so the reasons for the application should be compelling.

If the documents provided are illegible (which can often happen with second or third generation copies — copies of copies of copies), a judge may order that legible copies be provided.

DC5.2 Further reading

(1) District Court Rules 2014

DCR 2014, r 8.29 Order facilitating inspection.

(2) High Court Rules 2016

HCR 2016, r 8.29 Order facilitating inspection.

DC 5.3Next step

Proceed to [DC6] (Step 6. Use of discovered documents).

Step 6. Use of discovered documents

DC6.1 Matters to consider

The purpose of discovery is to assist the just determination of the proceeding by the court. To protect that objective, access to and use of discovered documents is restricted.

Discovered documents may be used only for the purposes of the proceeding and may not be given to anyone else, except for that purpose (e.g. to an expert witness or some other person consulted for an opinion). Breach of this obligation — known as the “implied undertaking” — is a contempt of court.

When providing discovered documents to your client, you should advise in writing that further dissemination is restricted.

This rule is of course subject to the document having been read out in open court (that is, not a chambers hearing). In that event, and subject to any directions under the Senior Courts (Access to Court Documents) Rules 2017 and the District Court (Access to Court Documents) Rules 2017, the document may be used without restriction.

DC6.2 Further reading

(1)District Court Rules 2014

DCR 2014, r 8.33 Contempt of court.

(2)High Court Rules 2016

HCR 2016, r 8.33 Contempt of court.

(3)Other rules

District Court (Access to Court Documents) Rules 2017.

Senior Courts (Access to Court Documents) Rules 2017.

DC6.3 Next step

Proceed (if relevant) to the next module Interrogatories (starting at [DD1]).

DD1 Interrogatories

DD1.1Matters to consider

Discovery is the process by which each party to a proceeding discloses the existence of all relevant documents of which it knows to the other parties to the proceeding. By contrast, interrogatories are a means by which a party may obtain from another party evidence that either supports the interrogating party’s case or harms that other party’s case.

Interrogatories take the form of specified questions that another party must answer relating to any matter in question in the proceeding between the interrogating party and the party on whom the interrogatories are served. The interrogating party usually requires the answers to be verified on oath. The purpose of administering interrogatories is to obtain, from another party, evidence that can be used at trial.

Interrogatories must be directed towards matters in question in the proceeding: in other words, a factual dispute raised on the pleadings. Each interrogatory should seek crisp answers to crisp questions. Interrogatories cannot be used as a fishing expedition. If interrogatories contain vague or general questions, the party on whom those interrogatories are served may well refuse to answer them.

Interrogatories are directed towards obtaining facts, not evidence about facts in dispute. The distinction can be a fine one. (See Fay v Chirnside(2002) 16 PRNZ 87 (HC) at 41.) For example, an interrogatory directed at establishing who was at a particular meeting is unlikely to be allowed unless that person’s attendance is in dispute and is a relevant fact to the cause of action. Interrogatories are not merely a means of establishing what evidence is available about what transpired at the meeting.

Interrogatories can usefully narrow the scope of the dispute by forcing admissions or concessions on pleaded allegations. As a result, a party may end up needing to call fewer witnesses, or the evidence required from that party’s witnesses may be reduced.

On the other hand, interrogatories may reveal important tactical matters and give the opposing counsel the chance to answer in an equally tactical way. The basic cross-examination rule of not asking a question if you do not already know the answer may inform your decision about whether it is a good idea to administer interrogatories. Interrogatories may be advantageous if you know the answer and wish to force your opposing counsel into conceding the point.

DD1.2 Tasks

Identify disputed factual allegations where the opposing party may have relevant evidence to give that assists your case or harms their own case.

Formulate questions on the disputed factual allegations.

Serve a notice to answer. (See [DD2] (Step 2. Interrogatories — procedure) below.)

If the party interrogated serves an evasive response, or no response at all, request a further case management conference or file an application on notice requiring that party to answer the interrogatories. (See the module Interlocutory Applications at [DE9] (Step 9. Enforcement of interlocutory orders).)

DD1.3 Next step

Proceed to [DD2] (Step 2. Interrogatories — procedure).

DD2.1 Matters to consider

Once a statement of defence has been filed, a party who has served a pleading may file and serve a notice to answer interrogatories on another party who has filed a pleading. The notice must follow the prescribed form (HCR Form G 35 and DCR Form 23).

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

G35 — Notice to answer interrogatories.

DCR023 — Notice to answer interrogatories.

SDCR023 — Sample Notice to Answer Interrogatories (Form 23).

Inloc01B — Interrogatories (a checklist).

The interrogating party can require the interrogatories to be verified by affidavit. In practice, it almost always does so: it is far more difficult for the other party to resile from a previous answer on oath.

The notice must specify the time by which the answers must be provided, but that time must not be less than 10 working days from the date of service (or 20 working days if the party is resident out of New Zealand).

If the party does not answer within time, the interrogating party may apply for an order requiring the other party to answer the interrogatories. Failure to comply may lead to the defaulting party’s claim or defence being struck out or, in the case of vague or evasive answers, an order for the party to attend to be orally examined.

The grounds to object to answering interrogatories are limited:

The interrogatory does not relate to a matter in question between the parties involved in the interrogatories.

The interrogatory is vexatious or oppressive.

The information sought is privileged.

The sole object of the interrogatory is to ascertain the names of witnesses.

A party that has received a notice to answer interrogatories may apply to court for an order disallowing or limiting the interrogatories.

In determining whether to order answers, the court will balance the answers required against the dispute itself. Twenty pages of interrogatories on a simple contract dispute are likely to be viewed as oppressive. The proportionality test in the discovery rules is a useful guideline.

DD2.2 Tasks

If acting for the plaintiff, serve a notice to answer interrogatories only once the party to be interrogated (or another party) has filed a defence, and ensure that the notice specifies the time by which the answers must be provided.

If you are acting for the interrogating party and the other party does not answer within time, consider whether to apply for an order requiring that party to answer your interrogatories.

If you are acting for a party that has received a notice to answer, consider whether to apply to court for an order disallowing or limiting the interrogatories.

DD2.3 Further reading

(1)District Court Rules 2014

HCR 2016, Form 23 Notice to answer interrogatories.

(2)High Court Rules 2016

DCR 2014, Form G 35 Notice to answer interrogatories.

DD2.4Next step

Proceed (if relevant) to the next module Interlocutory Applications (starting at [DE1]).

Preserv02 — Letter to client advising of obligation to retain documents

[1=Client’s name and Address]

[2=Description of matter]: Retention of relevant documents

As you may be aware, a dispute has arisen between [3=party A (first party to dispute)] and [4=party B (second party to dispute)] about [5=insert brief description of dispute]. Although no litigation has been commenced in relation to [6=brief description of the dispute], the possibility of such litigation exists, and we are therefore taking steps now to preserve all documents that may be relevant to the [6=brief description of the dispute], as well as other topics.

You must retain and preserve all documents in the categories described below. Further instructions are set out in this letter.

Documents to be retained and preserved

All documents concerning [7=brief description of the dispute] generally.

[8=Identify any important people and/or employees of the client that may have had a specific role in the dispute whose documents will need to be preserved].

[9=Identify any important date ranges in which correspondence took place for which the documentation needs to be preserved].

[10=Identify any ancillary categories which may have documents relating to the dispute].

Instructions

The term “document” is very broad, and includes all paper documents, electronic documents (such as Word, Excel, PowerPoint, and PDF files), emails, and computer files and data. It also includes both formal and informal documents, draft documents, duplicates of documents, handwritten notes, communications, calendar entries, voicemails and other recordings.

This notice applies to all documents created from [11=date litigation was reasonable contemplated] onwards, including documents created or received after the date of this notice.

You must preserve documents found in all possible locations in which you may have documents, including:

Paper files in your office, you assistant’s office, any central filing area, at home, in archives/storage, or in any other location;

Electronic files on your local or network drive, desktop, laptop, home computer, blackberry, portable or removable drives, flash drives/memory sticks, CDs or DVDs or any other device;

Emails (and calendars) in your inbox, files, folders, archives, sent folder and trash/recycle bin/deleted items folder.

For every document that falls within one or more of the categories listed above, you must:

Continue to keep the documents in the same way and place as you usually maintain them in the ordinary course of business and ensure that they are not deleted, discarded or modified;

Preserve the entire document, even if only a part is relevant;

Preserve the document even if you consider it to be privileged, confidential or sensitive.

These instructions supersede any other instructions or policies under the company’s records management policy.

If you have any questions about your obligations under this notice, please contact us to discuss.

Yours faithfully

Inloc01A — Discovery

WHEN YOU RECEIVE A NOTICE FOR DISCOVERY MADE AT A CASE MANAGEMENT CONFERENCE IN THE HIGH COURT OR A JUDICIAL SETTLEMENT CONFERENCE IN THE DISTRICT COURT

1.	Check the time required for compliance. Explain process to the client.
2.	Get the relevant documents from client.
3.	Prepare the list of documents. Have it verified and the list sworn by the client: DCR8.15/HCR8.15, DCR8.16/HCR8.16, and DCR8.24/HCR8.24.
4.	Arrange electronic exchange of documents to other parties. The default position is that the list is to be provided electronically as a spreadsheet or Word document and the documents themselves are to be multi-page PDF images: see Part 2 of Schedule 9 of the High Court Rules, cl 11. An order can be made to facilitate inspection if necessary.

WHEN YOU REQUIRE DISCOVERY

1.	If you are acting for the plaintiff, do you need documents before you can draft the proceedings? If so, file and serve application and affidavit in support, together with a draft statement of claim: DCR8.20/HCR8.20.
2.	If you are acting for the defendant, do you need discovery before you can file a statement of defence? If so, file and serve an application and supporting affidavit: DCR8.19/HCR8.19.
3.	In the High Court a discovery order will be made at the first case management conference: HCR8.5. Discovery (ie the affidavit of documents) must be filed and served within 20 working days after the date the discover order was made unless otherwise ordered by the court: HCR8.15.
4.	In the District Court, a discovery order will be made at the second case management conference: DCR8.5. Discovery (ie the affidavit of documents) must be filed and served within 20 working days after the date the discover order was made unless otherwise ordered by the court: DCR8.15.
5.	Check the other party’s list of documents. If it does not contain all the expected documents, write asking for better discovery.If you are not satisfied within a reasonable time (for example, 15 working days) apply for an order for discovery of particular documents by filing and serving an application and supporting affidavit: DCR8.19/HCR8.19.
6.	Does a non-party have documents that would be helpful to the proceedings? If so, write inviting discovery.If this is unsuccessful, consider applying for discovery against non-party, by filing a notice of application and supporting affidavit (and supporting memorandum): DCR8.21/HCR8.21.
7.	Arrange inspection of documents with other counsel. Under HCR8.27/DCR8.27 a party who has filed an affidavit must make the documents available for inspection by way of electronic exchange.
8.	If the other party has claimed privilege inappropriately, issue an application seeking production for inspection: DCR8.25/HCR8.25.
9.	Request copies of documents: DCR8.30/HCR8.30.

DE1 Interlocutory applications

DE1.1 Introduction

If the parties cannot agree how the proceeding is to progress, the court will be required to intervene and decide on the matter. The key part of that sentence is “if the parties cannot agree”.

The ethos of cooperation that permeates the case management regime informs all aspects of a proceeding, and the parties should try to agree matters of procedure by reasonable give and take. Court time is a precious commodity and it should be used sparingly.

If agreement is not possible, you will need to file an interlocutory application to determine the point of dispute.

The court’s jurisdiction to make an interlocutory order arises wherever the expression “on application” appears in the rules. Whenever the rules require a party to do or refrain from doing a particular thing, there is jurisdiction to enforce by way of interlocutory order. It follows that there are as many kinds of interlocutory application as there are obligations.

DE1.2Notice generally required

Applications come in two forms: on notice, which is the rule, and without notice (formerly ex parte), which is very much the exception, once a proceeding has been commenced.

You may make an application without notice to the opposite party only if the rules permit it. That permission is generally predicated on some urgency or significant detriment to the applicant. An application without notice may be made only on one or more of the following grounds:

requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant;

the application affects only the applicant;

the application relates to a routine matter;

an enactment expressly permits the application to be made without serving notice of the application; and/or

the interests of justice require the application to be determined without serving notice of the application.

In addition, a without notice application may be made only if the applicant has made all reasonable inquiries and taken all reasonable steps to ensure that the application and supporting documents contain all material that is relevant to the application, including any defence that might be relied on by any other party and any facts that would support the position of any other party.

A without notice application must set out which ground is the reason why the application is being made without notice.

The applicant or their lawyer must then certify in the without notice application that the relevant grounds are made out and that all reasonable inquiries and all reasonable steps have been made or taken to ensure that the application contains all relevant information, including any opposition or defence that might be relied on by any other party, or any facts that would support the position of any other party. If a lawyer is certifying the application, the lawyer must personally be satisfied that the application is in accordance with the rules. A lawyer is not justified in accepting the word of another to this effect. Certification goes further; the lawyer must be satisfied that the order ought to be made. The lawyer is personally responsible for the certificate and for ensuring that full disclosure is made of all relevant facts.

This duty extends to all matters relevant to the application whether or not the lawyer considers them to be important. In particular, the applicant must make all reasonable inquiries and take all reasonable steps to ensure that the application and supporting documents contain all material that is relevant to the application, including any defence that might be relied on by any other party and any facts that would support the position of any other party. Performing this duty requires proper inquiry on the certifying lawyer’s part.

Breach of these obligations will ground the discharge of the order, whether it was justified or not, although this is very much in the court’s discretion. It will also render the lawyer liable to disciplinary proceedings.

The middle ground, certainly in cases of urgency, is to file a without notice application, but to serve it on the opposing parties anyway — the so-called Pickwick procedure. This procedure allows the respondent to appear and make submissions or to apply to review the order subsequently if it is made.

An applicant who makes an application without notice must, if the application is of a kind that is likely to be contested if it were made on notice, file a memorandum with the application that sets out:

the background to the proceeding (including the material facts that relate to the proceeding);

the grounds on which each order is sought;

an explanation of the grounds on which each order is sought without notice; and

all information known to the applicant that is relevant to the application, including any known grounds of opposition or defence that any other party might rely on, or any facts that would support opposition to the application or defence of the proceeding by any other party.

DE1.3 Tasks

Identify if an application is necessary or whether the objective can be achieved by negotiation.

Identify whether the application should be made on notice or without notice to the other parties.

DE1.4 Next step

Proceed to [DE2] (Step 2. Form of application and filing for interlocutory application).

DE2 Step 2. Form of application and filing for interlocutory application

DE2.1 Matters to consider

The forms of interlocutory application on notice — HCR Form G 31 and DCR Form 17 — are standardised. The prescribed form requires notice of the date and place of hearing, the orders sought, and the reasons for seeking them.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

G31 — Interlocutory application on notice.

DCR017 — Interlocutory application on notice — Form 17.

DCR018 — Interlocutory application without notice — Form 18.

SDCR018 — Sample Interlocutory Application Without Notice (Form 18).

When drafting the notice of application, unless you can obtain a date for hearing before filing, or the court has allocated time for a proposed application at a case management conference, the date field should be left blank to be completed by the registry. Discuss the matter with the case manager where possible. The imminent filing of an interlocutory application may be a reason to reconvene a case management conference or, if one is listed in the reasonably near future, to use that date for the application, even if only as a nominal date for timetabling purposes.

The forms require a concise explanation of the order sought and the reasons for it.

The terms of the order, if simple, should be set out in the form. If the order is lengthy and complex, it is better to provide a draft minute of order and attach that to the application. In an injunction application, the detail of the order may be extensive, so the application text could read:

“That the defendant, and its servants and agents, be restrained from further excavating the land adjacent to the plaintiff’s property, as per the attached minute of order.”

The minute would contain the description of the land, the property and so on necessary to make the order clear and effective.

The grounds for the application should be set out, but without undue recitation of facts or evidence. These are the key matters or facts that must be established in order to show an entitlement to the order. Facts should be proven by the affidavit evidence filed in support.

In the case of an application to strike out a pleading, for example, a pleading may be struck out on the basis that it:

discloses no reasonably arguable cause of action, defence or case appropriate to the nature of the pleading;

is likely to cause prejudice or delay;

is frivolous or vexatious; or

is otherwise an abuse of the process of the court.

There are four different bases on which to mount such an application. The grounds section of a strike out application may then state:

“1.The plaintiff’s statement of claim discloses no reasonable cause of action.“2.The statement of claim is likely to cause prejudice or delay in the proceeding.“3.The proceeding is an abuse of process of the court.”

You should rely only on the grounds you can establish; pleading all available grounds mantra fashion in the hope that one or more will succeed is unfocused and risks creating the impression of a “hot and hope” approach.

The application should also specify the law relied on. The law relied on will frequently be the rule of procedure under which the application is brought and the principal authorities elaborating the grounds.

You should not specify every single case you intend citing at the hearing, or cases of general principle on the topic. If a case is cited, it should be because it illuminates the particular point you are making, not a statement of the law on the issue.

There are of course filing fees.

The application is treated as filed once the registrar receives it with the appropriate fee. You will need to complete a fee waiver application for legally aided or impecunious clients, which must be filed at the same time.

DE2.2 Tasks

Identify the legal basis for the interlocutory application under the rules of court and in case law.

Identify the precise terms of the order sought.

Identify what evidence, if any, is necessary to establish an entitlement to the order sought.

Prepare the necessary affidavit(s) and the application. (See [DE5] (Step 5. Affidavit in support or opposition) below.)

Obtain the funds necessary for the filing fee for the application or draft a fee waiver application. (See Ministry of Justice “Apply for help to pay the court fees for a civil or family case” <www.justice.govt.nz>.)

File the application and affidavits and serve those documents on every other party at its address for service. (See [DE3] (Step 3. Service of notice) below.)

DE2.3 Next step

Proceed to [DE3] (Step 3. Service of notice).

DE3 Step 3. Service of notice

DE3.1 Matters to consider

The application and affidavits must be promptly served on every other party, whether an order against them is sought or not, if the other party has given an address for service. A party that fails to provide an address for service is not entitled to be served with any documents in the proceeding or, for that matter, to address the court.

You should always be in a position to prove the service of documents, even when the opposing party is legally represented. If a lawyer is acting for the other party, you may well be able to obtain a signed acknowledgement of service. An emailed confirmation of the receipt of the documents from the lawyer acting should suffice in most cases. With litigants in person, it is advisable to have an affidavit of service available.

It is best that the affidavit of service is sworn by a member of the support staff, such as a secretary. If served by mail, the affidavit need simply state that the application and affidavits (with the name of the deponent and the date it was sworn) were sent by ordinary mail to the address for service on the date of postage. So long as the documents are properly described, it is not necessary to exhibit them to the affidavit of service.

DE 3.2 Tasks

Identify the date by which the documents are to be treated as served. (See r 6.6 of the High Court Rules 2016 and r 6.6 of the District Court Rules 2014.)

Mail or deliver documents to the address for service.

Obtain an acknowledgement of service or prepare an affidavit of service.

DE3.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 6.6 Service by means of post office box, document exchange, fax, or email.

(2) High Court Rules 2016

HCR 2016, r 6.6 Service by means of post office box, document exchange, fax, or email.

DE3.4 Next step

Proceed to [DE4] (Step 4. Notice of opposition).

DE4 Step 4. Notice of opposition

DE4.1 Matters to consider

The notice of opposition notifies the other parties to the proceeding that the application is to be opposed and the reasons why. As with the notice of application, the notice of opposition must state the facts and the law relied on by the opposing party that demonstrate why the order cannot, or ought not to, be made.

The notice is due 10 working days after the date of service of the application, or three working days before the hearing if the hearing falls within that 10-working-day period. The prescribed forms are HCR Form G 33 and DCR Form 19.

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

G33 — Notice of opposition.

DCR019 — Notice of opposition — Form 19.

If the opposing party will seek to contradict the evidence of the applicant, or relies on other evidence, that party will need to file and serve affidavits in opposition.

Failure to file an opposition within time may result in the order being made. Whether that is so may well depend on the opposing party’s compliance history to date. The court is more likely to afford a degree of forbearance and adjourn the hearing if that party has a track record of keeping to deadlines in the past. A repeated non-complier may face more difficulty.

DE4.2 Tasks

Identify the legal basis for the opposition to the application under the rules of court and in case law.

Identify what evidence, if any, is necessary to oppose the application.

Prepare the notice of opposition and any necessary affidavit(s). (See [DE5] (Step 5. Affidavit in support or opposition) below.)

Obtain the funds necessary for the filing fee for the notice of opposition or draft a fee waiver application. (See Ministry of Justice “Apply for help to pay the court fees for a civil or family case” <www.justice.govt.nz>.)

File the notice of opposition and affidavits and serve those documents on every other party at its address for service. (See [DE3] (Step 3. Service of notice) above.)

DE4.3 Further reading

(1) District Court Rules 2014

DCR 2014, Form 19 Notice of opposition.

(2) High Court Rules 2016

HCR 2016, Form G 33 Notice of opposition.

DE4.4 Next step

Proceed to [DE5] (Step 5. Affidavit in support or opposition).

DE5 Step 5. Affidavit in support or opposition

DE5.1 Matters to consider

Not all applications will require affidavits in support. It is highly unlikely that an application to require a more explicit pleading would in any way be assisted by affidavit evidence (subject, if necessary, to proof of service of the application and the parent notice).

Where there are key facts to be established before the court could grant the order sought, the application needs to be supported by affidavit evidence. However, the judge may accept oral evidence in relation to an interlocutory application in “special circumstances”. The term is not defined and will take something significantly out of the ordinary. The same test applies to cross-examining deponents who have made affidavits in support of or in opposition to the interlocutory application.

Affidavits in support or opposition must be filed at the same time as the application or notice of opposition.

Filing those affidavits at the same time is not always possible. If you are not able to file the affidavit with the application, your covering letter should explain why it is not possible and when it will be filed. A failure to file the affidavit with the application or opposition is unlikely to lead to the rejection of the documents for filing, but you cannot assume so. In this situation, it would be prudent to file the documents in person. If the registry rejects the documents for filing, you will at least know that on the spot and not find out days later when the rejected documents arrive in the mail.

Any affidavit in reply to an affidavit filed in opposition to the interlocutory application must be limited to new matters raised; it is not an opportunity to supplement the initial affidavit evidence in support. An affidavit in reply must be filed no later than five working days after service of the notice in opposition or by 1 pm on the working day before the hearing, if the hearing date is within the five-working-day period.

All affidavits must comply with the general rules (rr 9.75–9.88 of the High Court Rules 2016 and rr 9.65–9.78 of the District Court Rules 2014) that govern form and content. Affidavits must comply with the normal rules of evidence and statements of belief are generally inadmissible. However, for an affidavit in relation to an interlocutory application, the judge may accept statements of belief if the grounds for that belief are given and:

the interests of no other party can be affected by the application;

the application concerns a routine matter; or

it is in the interests of justice.

DE5.2 Tasks

Ensure that key facts are established and the application (or opposition) is supported by evidence in the form of affidavits.

Ensure that affidavits in support or opposition are filed at the same time as the notice of application or notice of opposition.

Ensure that any affidavit in reply to an affidavit filed in opposition is limited to new matters raised.

DE5.3 Further reading

(1)District Court Rules 2014

DCR 2014, pt 9 subpt 8 Procedure when evidence given by affidavit.

DCR 2014, rr 9.66–9.78 Rules governing form and content of affidavit.

(2)High Court Rules 2016

HCR 2016, pt 9 subpt 9 Procedure when evidence given by affidavit.

HCR 2016, rr 9.76–9.88 Rules governing form and content of affidavits.

DE5.4 Next step

Proceed to [DE6] (Step 6. Synopses of argument).

Step 6. Synopses of argumnet

DE6.1 Matters to consider

Synopses of argument assist the court in understanding your oral argument. They also help to refine the oral argument itself by requiring counsel to work out in advance a logical structure for its presentation. If you can file a cogent synopsis ahead of the hearing, you may put your opponent on the immediate back foot, as the judge has grasped and may be persuaded by your argument before counsel for the opposing party says anything.

It can be of real assistance to get a colleague who knows little or nothing of your case to proofread your synopsis. Even if you have honed the argument down to a fine point in your own head, you may find that, when reading your own synopsis, you import all that knowledge and understanding in your comprehension of your written work. A fresh set of eyes can pick out a lack of clarity in the argument that your unconscious assumptions in the drafting may engender. In this way, a good synopsis can be made even better.

The applicant’s synopsis is due at least two working days before a defended hearing in the High Court and (generally) at least three working days before a defended hearing in the District Court; the respondent’s synopsis is due at least one working day beforehand. (See r 7.39(2) and (5) of the High Court Rules 2016 and r 7.32(2) and (5) of the District Court Rules 2014.) The hearing is a defended hearing if another party has filed and served a notice of opposition to the notice of application.

The applicant’s synopsis must identify the general nature of the case, include a chronology of the material facts and outline the applicant’s principal submissions. These materials combined should not exceed 10 pages. If they do, the argument needs further refinement to ensure focus on the issues.

The synopsis should also be accompanied by or have annexed to it:

an indexed and paginated set of relevant documents; and

a list of authorities.

A respondent’s synopsis should identify any material facts that are not referred to in the applicant’s synopsis, state any facts that are disputed and outline the respondent’s principal submissions. Again, there is a 10-page limit.

The documents and authorities should be limited to those not included in the applicant’s documents.

Your oral argument should speak to the synopsis rather than reading it from beginning to end. The main points need to be in writing in advance. Oral argument is for fleshing out matters of detail, responding to the opposing parties’ material and for answering questions from the Bench. Few things cause a judge’s eyes to glaze over more quickly than counsel reading a synopsis the judge has already read.

DE6.2 Tasks

Summarise your argument in writing by reference to the key facts, cross-referenced to the affidavit evidence.

Where possible, have a colleague read your synopsis to ensure clarity of argument.

Prepare a bundle of documents and authorities.

File and serve the synopsis and bundle.

DE6.3 Further reading

(1)District Court Rules 2014

DCR 2014, r 7.32 Synopsis of argument.

(2)High Court Rules 2016

HCR 2016, r 7.39 Synopsis of argument.

DE7 Step 7. Hearing in chambers

DE7.1 Matters to consider

Unless the court otherwise orders, interlocutory applications are heard in chambers and may be by teleconference or video link.

Counsel applying will be expected to address the court first. Who follows — if multiple other parties have opposed the interlocutory application — may need to be the subject of discussion and agreement by counsel for the respondents. It may be that one respondent will lead the charge against the application. It makes sense for that person to address the court next.

Counsel for the applicant has the right of reply, and there the matter ends unless the judge permits one of the respondents a rejoinder. There has been a tendency in recent times for counsel to pop up and make further submissions after the formal order of addresses has been completed. Without seeking permission, it is risky to do so.

A party unaffected by the order sought, or who does not oppose its making, is not obliged to attend. That party is required to notify the court in writing of that fact.

Not attending unnecessary hearings keeps the costs down, but that should occur only in cases where the order to be made is clear in its proposed terms. If what is sought has some complexity, it may pay to kept a watching brief. You can ensure your clients are not inadvertently intruded upon, as well as keep apprised of developments in the other parties’ cases. Things may be said in the course of a hearing that assume significance only later.

DE7.2 Tasks

If you are counsel for the applicant, be prepared to address the court first.

If you are counsel for a respondent, ensure that you and counsel for the other respondents agree who will follow the first speaker.

Be aware that counsel for the applicant has the right of reply but there may be a limited right of rejoinder on the part of the other parties.

DE8 Step 8. Sealing the order

DE8.1 Matters to consider

Whether the resulting order or direction requires formal sealing will depend on the rules and the nature of the order. It is unlikely that something as routine as an order that a party file an amended pleading would require the formality of sealing.

The order must be drawn up by the party obtaining it and submitted to the registrar for sealing if the order:

affects a person who is not a party;

joins a person as a party; or

directs that it be served on a person.

It must be drawn up in the prescribed form (HCR Form G 34 or DCR Form 20).

Tools

Civil Litigation Precedents

(online ed, Thomson Reuters) at:

G34 — Interlocutory order.

DCR020 — Interlocutory order — Form 20.

If you expect to seek arrest or committal in the event of non-compliance (such as in the case of an injunction), you should seal the order and have it personally served on the other party. Proof of service of a sealed copy is the simplest means of proving that the person affected had proper notice of the order and ought to have complied.

DE8.2 Tasks

Identify whether the order needs sealing.

In the case of a complex order, circulate a draft order to the lawyers for the other parties for comment.

Obtain the funds necessary for the filing fee for sealing or draft a fee waiver application.

File the order with the court.

Serve the sealed order on all other parties.

Personally serve the order on any one else as directed by the court.

DE8.3 Further reading

(1) District Court Rules 2014

DCR 2016, Form 20 Interlocutory order.

(2) High Court Rules 2016

HCR 2016, Form G 34 Interlocutory order.

DE9 Step 9. Enforcement of interlocutory orders

DE9.1 Matters to consider

The rule under which the application is made may provide specific remedies in the event an order is breached, such as an order to attend for examination following an order for interrogatories.

If not, the judge still has very wide powers to make any enforcement order the judge thinks just. Without limitation, the judge has power to order that:

any pleading of the party in default be struck out in whole or in part;

judgment be sealed;

the proceeding be stayed in whole or in part;

the party in default be committed;

if any property in dispute is in the possession or control of the party in default, the property be sequestered;

any fund in dispute be paid into court; or

a receiver be appointed of any property or of any fund in dispute.

The order made will be tailored to the nature of the default and the procedural history of the case. Defaulting parties will be given the opportunity to remedy non-compliance before such final orders as a strike-out.

The most common interlocutory remedy will be costs, fixed and payable by the defaulter before that party is entitled to take any further steps.

Repeated non-compliance will probably result in an “unless” order that, unless the defaulting party remedies the non-compliance by a particular time, the claim or defence will be struck out without the need for a further judicial determination.

The Court of Appeal has gathered together the principles relevant to “unless” orders in SM v LFDB2014 NZCA 326, [2014] 3 NZLR 494, (2014) 22 PRNZ 253:

They are orders of last resort and properly made only where there is a history of failure to comply with earlier orders.

They should be clear as to their terms. They should specify clearly what is to be done, by when and what the sanction for non-compliance is. The sanction should be proportionate to the default.

The sanction will apply without further order if the party in default does not comply although that party may apply for relief.

Justice may require that the party in default be relieved of the consequences of the order where the court is satisfied the breach resulted from something for which that party should not be held responsible. However, it should not be assumed that belated compliance will suffice.

Where orders are deliberately breached — flouted — there are likely to be few situations where the interests of justice will require relief from the sanction imposed despite belated compliance with the order.

When deciding whether to excuse the breach of an “unless” order, the question is what justice requires in the circumstances, taking into account (among other things):

the public interest in ensuring that justice is administered without unnecessary delay and cost;
the interests of the injured party, particularly in terms of delay and wasted costs; and
any injustice to the defaulting party — although that consideration is likely to carry much less weight than the two above.

DE9.2Tasks

Ensure that you can prove service or notice of the order against the party in default.

Consider the appropriate order to ensure compliance.

Discuss remedying the default with the defaulting party’s lawyer and record any agreement in writing.

If the agreement is breached or no agreement is reached on remedying the default, contact the case manager to see whether the proceeding can be listed for a further case management conference. (See r 7.2 of the High Court Rules 2016 and r 7.5 of the District Court Rules 2014.)

If not, file and serve an interlocutory application to enforce the order.

Unless the defaulting party admits the breach, prepare, file and serve any affidavit evidence necessary to prove the defaulting party’s breach of the order.

DE9.3 Further reading

(1) District Court Rules 2014

DCR 2014, r 7.5 Additional case management conferences.

(2) High Court Rules 2016

HCR 2016, r 7.2 Case management conferences generally.

DE10 Step 10. Interlocutory application considerations

DE10.1 Matters to consider

Even if an application can be made, should it?

There is a very old chess adage: “An amateur sees a check, an amateur takes a check.” Just because an application can be made does not require it be made.

It is important to ask the question: does this application advance your client’s case without unnecessary cost? What tactical information about your client’s case do you give away by making the application weighed against the benefits of the order sought?

If the application is proper, checklist the grounds for it, including any preconditions.

If you are trying to enforce a notice served on another party to take a particular step, make sure that you can prove the notice was served. Review the contents of the notice itself to ensure it complied with the rule under which it was issued.

DE10.2 Next step

Proceed to the module Trial — District Court (Short and Simplified Trials) (starting at [FA1]).

Note also the next module A Guide to Preparing and Applying for Summary Judgment (starting at [EA1]).

A guide to preparing and applying for summary judgment

EA1.1 Overview

Summary judgment is a process by which the court may give judgment in favour of the plaintiff (or the defendant) without the need for a trial or any other interlocutory processes. The onus is on the party applying for summary judgment to satisfy the court that there is no arguable claim or defence. The court tries to strike a balance to ensure that both parties have a fair hearing and that the procedure does not become oppressive.

The summary judgment procedure allows plaintiffs and defendants to obtain judgment promptly in clear-cut cases. That said, it is important to apply for summary judgment only in applicable situations. Unsuccessful applications will lead to more cost and delay.

EA1.2 Why summary judgment?

In some situations, there will be good reasons to apply for summary judgment. These reasons include:

speed; and

lower overall cost to the client if successful.

EA1.3 Why not summary judgment?

It will be inadvisable to apply for a summary judgment in situations where:

it is not necessary for a speedy determination of the case;

the case is factually complex;

applying for summary judgment will result in increased cost to the client; or

applying for summary judgment may result in decreased reputation for your client, or reduce the prospect of a successful settlement, if unsuccessful.

EA1.4 Is this a summary judgment case?

Pemberton v Chappell1987 1 NZLR 1, (1986) 1 PRNZ 183 (CA) is the leading case on plaintiff summary judgment. The key principle is that summary judgment will be granted to a plaintiff if the plaintiff satisfies the court that the defendant has no defence to the claim — that is, there is no real question to be tried.

Where the only arguable defence is a question of law, which is clear-cut and does not require findings on disputed facts or the court to find further facts, the court may decide that question of law on the application for summary judgment. Where the defence raises questions of fact crucial to the determination of the proceeding, summary judgment will probably not be appropriate, unless the questions of fact raised are baseless.

In practical terms, the following are useful pointers to whether it is sensible to apply for summary judgment:

Summary judgment is particularly suited to actions on a simple contract.

A summary judgment application is more likely to succeed if the plaintiff’s cause of action can be established by documentary evidence, e.g. a written contract setting out all the terms of the agreement.

Conversely, if the plaintiff’s cause of action relies on implied terms of an agreement, the court would need to establish those terms and may not be in a position to do so without cross-examination of the relevant witnesses.

If the case needs a long narrative affidavit from your client, it invites factual disputes by a defendant.

As a general class, a cause of action in tort is perhaps less likely to be suitable for summary judgment.

When advising your client whether to apply for summary judgment, you should bear in mind the short and simplified trial modes available under the District Court Rules 2014 (DCR 2014). The modes in r 10.4 of the DCR 2014 (short trial) and r 10.7 of the DCR 2014 (simplified trial) provide for speedy resolution of disputes with the ability to cross-examine witnesses, albeit in a truncated form. These modes may be more appropriate in some situations than applying for summary judgment.

It is also important to note that, in the District Court, a party may apply for summary judgment as of right even after a statement of defence has been filed. If the defendant files a statement of defence, a plaintiff may file a summary judgment application under r 12.4 of the DCR 2014 as of right until the expiry of 10 working days after the date on which the statement of defence was served, or later with the leave of the court.

These considerations are particularly relevant in situations where:

the claim may not be defended anyway; or

you have difficulty in locating the defendant to serve the proceeding.

If the proceeding is not likely to be defended, the swiftest (and cheapest) way to obtain judgment is the default judgment procedure under subpt 2 of pt 15 of the DCR 2014.

Tip

One of the advantages in waiting to see if a statement of defence is filed is that it may serve to clarify or crystallise the issues in dispute.

If the statement of defence does not raise a particular issue, it will not ordinarily be necessary to rebut its existence and the preparation required for a summary judgment application may be significantly reduced.

EA1.5Tasks

Assess whether the plaintiff’s cause of action (or the defendant’s defence) is suitable for summary judgment (see the checklist Summ02 — Summary judgment):

Consider whether summary judgment is available for the type of claim.
Consider whether summary judgment is legally and factually appropriate.
Consider whether the additional cost of summary judgment is warranted.
Consider whether it would be more cost-effective to use the District Court short or simplified trial modes.
Consider whether it would be more cost-effective in the District Court to wait and see if the claim is defended and, if so, what defences (if any) are raised in a statement of defence.

If you assess that applying for summary judgment is appropriate, obtain your client’s instructions.

Include an estimate of the additional costs of applying for summary judgment.

EA1.6Further reading

(1)District Court Rules 2014

DCR 2014, r 10.1 Criteria for mode of trial.

DCR 2014, r 10.4 Features of short trial.

DCR 2014, r 10.7 Features of simplified trial.

DCR 2014, r 12.4 Interlocutory application for summary judgment.

DCR 2014, pt 15 subpt 2 Judgment by default.

EA1.7Next step

Proceed to [EA2] (Step 2. Availability of summary judgment procedure).

EA2 Step 2. Availability of summary judgment procedure

Matters to consider

Rule 12.1 of the High Court Rules 2016

(HCR 2016

) provides that summary judgment is available in the High Court for all proceedings except:

originating applications;

appeals including appeals by way of case stated;

applications for a writ of habeas corpus; and

applications for administration in common form.

Summary judgment is available in the District Court for all proceedings except appeals to the District Court and except where otherwise provided in any enactment (District Court Rules 2014, r 12.1).

Nevertheless, applying for summary judgment will often be unsuitable outside of the exempt categories. An overriding principle is to assess whether the proceeding would be suitable for determination in a summary judgment without the need for oral evidence. If there are disputes about key facts, this factor indicates that summary judgment is not suitable.

EA2.2Tasks

Consider whether summary judgment is available for your client’s proceeding. (See the checklist Summ02 — Summary judgment.)

Consider whether there are disputes about key facts. If so, this factor indicates that summary judgment is not suitable.

EA2.3Further reading

(1)District Court Rules 2014

DCR 2014, r 12.1 Summary judgment procedure generally.

(2)High Court Rules 2016

HCR 2016, r 12.1 Application of summary judgment procedure.

EA2.4Next step

Proceed to [EA3] (Step 3. Is summary judgment appropriate?).

EA3. Step 3. Is summary judgment appropriate?

EA3.1Matters to consider

To determine whether applying for summary judgment is appropriate, it is necessary to determine whether summary judgment would likely be granted in the proceeding. The principles governing the grant (or refusal) of a plaintiff’s application for summary judgment were set out in

Krukziener v Hanover Finance Ltd2010 NZAR 307 (CA)

The defendant must have no defence to the claim; that is, there must be no real question to be tried.

The court must be left without any real doubt or uncertainty.

The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated.

The court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently improbable or inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent.

In the end, the court’s assessment of the evidence is a matter of judgement. The court may take a robust and realistic approach where the facts warrant it.

As the court will not grant summary judgment if there is a material dispute of fact that cannot be resolved on affidavit evidence alone, there are certain types of proceeding in which summary judgment is likely to be inappropriate. These include:

defamation;

allegations of fraud;

building disputes (with the possible exception of an unanswered construction claim under the Construction Contracts Act 2002); and

claims typically involving factual disputes, such as:

claims of mistake;
claims for rectification;
cases where the plaintiff relies on implied terms of contract;
cases where the scope of a tortious duty of care arises; and
claims with issues of credibility to be determined, as such questions require witnesses to be cross-examined.

For example, in a building dispute, there are likely to be factual disagreements regarding which party carried out building work and the dates on which building work was completed. It is highly unlikely that disputed facts of this nature could be resolved on affidavit evidence.

Another example would be a defamation case. In such a case, there may be factual disputes about matters such as the honesty of an opinion, the truth of which would be difficult to determine summarily. For a judge to make an informed finding on this factual dispute, the proceeding would nearly certainly have to go to trial.

If the court is satisfied that the quantum claimed remains the only issue in dispute, the court may grant summary judgment on the issue of liability only. An example may be where there is a breach of contract and no factual dispute as to this aspect, but there is a dispute regarding the amount of damages payable.

EA3.2Tasks

Review if necessary the checklist Summ02 — Summary judgment.

Consider whether it is legally and factually appropriate to apply for summary judgment.

EA3.3Further reading

(1)District Court Rules 2014

DCR 2014, r 12.1 Application of summary judgment procedure.

DCR 2014, r 12.2 Judgment when there is no defence or when no cause of action can succeed.

(2)High Court Rules 2016

HCR 2016, r 12.1 Application of summary judgment procedure.

HCR 2016, r 12.2 Judgment when there is no defence or when no cause of action can succeed.

EA3.4Next step

Proceed (if relevant) to [EA4] (Step 4. Costs).

EA4. Step 4. Costs

EA4.1 Matters to consider

As applying for summary judgment requires what is in effect immediate trial preparation in the form of producing the required affidavits in support, there is obviously more cost involved in applying for summary judgment than in not applying for it. However, if the application is successful, the parties avoid the need for any further steps in the proceeding (and the attendant cost).

In situations where the defendant may prove tricky to serve, the process server’s costs are also likely to be greater than normal. As the service copies may periodically have to be returned to court for reallocation of a hearing date if service is not effected in time, there is an additional time and administration cost involved.

You should explain these costs and potential difficulties to your client up front, before they decide whether to apply for summary judgment. In District Court proceedings, the additional costs of summary judgment at commencement may need some justification, given the availability of the procedure 10 working days following the filing of any statement of defence (District Court Rules 2014, r 12.4(2)). If no statement of defence is filed, judgment by default is a quicker and cheaper option.

EA4.2Tasks

Consider whether the additional cost of applying for summary judgment is warranted.

Consider whether, in District Court proceedings, it would be more cost effective to use the District Court short or simplified trial modes.

Seek your client’s instructions if it is appropriate to apply for summary judgment.

Include an estimate of the additional costs of applying for summary judgment.

EA4.3Further reading

(1)District Court Rules 2014

DCR 2014, r 12.4 Interlocutory application for summary judgment.

EA4.4Next step

Proceed to [EA5] (Step 5. Summary judgment application — required documents).