Briefing, bundles, judicial review and the economy

This post covers a range of interesting developments in the general litigation and public law fronts over recent weeks.

In-house legal counsel survey

Following its annual survey of more than 200 in-house legal counsel internationally, legal consulting firm Altman Weil, has reported that –

  • over 78% of chief legal officers achieved significant price reductions from outside counsel over the last 12 months, but the preference is not simply for the lowest price available;
  • around a third of chief legal officers want ‘transparent’ pricing, through which they can understand how and why prices are set, and want to have the opportunity to discuss potential changes, while another third prefer guaranteed pricing and most of the balance prefer value-based pricing;
  • nearly half of corporate law departments plan to add in-house lawyers over the next 12 months and to shift work there from external providers;
  • the first choice for change in external providers on the part of chief legal officers was improved budget forecasting followed by greater cost reduction and non-hourly-based pricing structures;
  • the most significant factor in selecting external counsel was a successful track record in similar matters, while one of the least significant factors was recorded as being qualifications and credentials.

The report can be found here

Practice note on the use of electronic bundles in the High Court

While electronic document management has been used within firms and, on a number of occasions, in courts over the last decade or so, the point has been reached at which electronic bundles are mandatory in certain cases and in which directions relating to the use have been standardised. The practice note issued by the Chief High Court Judge recently on the use of electronic bundles in the High Court covers common bundles that are likely to exceed 500 pages. An electronic bundle will consist of electronic copies of the pleadings, the common bundle and, potentially, affidavits, briefs, submissions and authorities.

Directions about electronic bundles are to be given at case management conferences and default directions are provided on the need to agree a format for the bundle that will be compatible, for example, with litigation support software, and on the format, folders, document names, indexes and hyperlinking that are to be used.

Recent authorities

The recent decision of Andrews J in Lepcha v Immigration and Protection Tribunal [2013] NZHC 2501 is noteworthy for its approach to determining a breach of natural justice and to remedies. Material which had a bearing on a deportation decision was posted to, but did not reach, the Immigration and Protection Tribunal. There could be little doubt that there was no breach of natural justice because the information was not before the Tribunal. However, the Court approached the issue on the basis of “… whether the additional material would have led to a different result, had it been before the Tribunal.” It was concluded that the result would have been the same and so the application for review was declined on that basis.

While questions of that sort are often asked by a court in considering whether or not, in the face of a flaw in decision-making process, it should exercise its discretion to grant a remedy, it is unusual for a remedy-related issue to provide an answer to whether or not there has been a breach in the first place.

Typically, a ground of review needs to be established before a Court will turn to its discretion and consider remedies and, if a ground of review is made out, it will only be relatively exceptional circumstances that a remedy will not be granted. And then, when that point is reached, the issue tends to be considered on the basis of whether a decision maker “may” or “could”, rather than “would”, have come to a different conclusion. While the outcome might have been the same in this case, there is a subtle difference in approach. Perhaps it all comes down to the need to be practical; reflecting the ancient principle that the law requires no one to do that which is vain and ineffectual.

Duffy J gave careful consideration to a similar point several weeks ago in MacPherson v Napier City Council [2013] NZHC 2518. There, errors had been found in the Council’s decision to grant a resource consent as a controlled activity on a non-notified basis. In the face of an argument of counsel for the Council emphasising substance over form, and futility and inevitability of outcome in sending the decision back, Duffy J was not prepared to second-guess what the outcome of a reconsidered decision might be, supporting Whata J’s comments in the Akaroa Marine Protection Society case on the need for maintenance of the rule of law and to the Court of Appeal’s comments in the Air Nelson case that “there must be extremely strong reasons to decline to grant relief”.

The Reserve Bank’s Financial Stability Report

The Reserve Bank’s November 2013 Financial Stability Report makes for solid but interesting reading on several fronts. These are some of the highlights: Trends in the household sector continue to cause a risk of over-correction in house prices in the event of an economic downturn. Although debt levels relative to income have eased from the 2007 peak, they have been increasing since late 2012. House price inflation has increased over the past 18 months, taking house prices in some regions to well above the at 2007 (pre-GFC) peaks in some regions.

The Reserve Bank’s requirement for banks to hold more capital against high loan-to-value ratio housing loans will assist to a moderate extent.

The position appears to be variable in the dairy sector. On the one hand, international dairy prices are at record levels, providing a significant boost to income in the dairy sector, but parts of the rural sector remain highly indebted and vulnerable to a fall in commodity prices or an increase in debt servicing costs.

International financial markets appear to be improving in some cases but levelling off in others. The European banking system remains vulnerable to high debt levels. Meanwhile the United States economy is improving with authorities now withdrawing some of the stimulus measures that have remained in place. At the same time, developing economies, including China, have started to slow, raising questions for us in terms of international commodity prices.

Our own economy is assisted through improved savings performance; a trend which needs to continue in order to improve our current account deficit and, as a result, our external debt levels.

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