Frances Joychild QC on the fading star of the Rule of Law

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By Frances Joychild QC.

Frances Joychild QC.
Frances Joychild QC.

ON NOVEMBER 7, 2014 the Chief Judge of the High Court, Justice Helen Winkleman, gave the Ethel Benjamin address on the subject of civil law: Access to Justice- Who needs Lawyers? It seems she has illuminated the most critically important legal conversation of our time for civil law at least. I wish to participate in it and my contribution follows.

Access to Justice is not just a human right for individuals. It is central to our constitution and social wellbeing. Access to justice enables the rule of law. One of the rules tenets is that all are treated equally and all are equally accountable under it. The rule of law ensures that we live in a safe, peaceful, harmonious, free and democratic society.

Over the past three years I have wondered increasingly if I am in a nightmare and have woken in Charles Dickens England. On a daily basis I clear my email and phone messages or answer the phone to at least one person in dire and desperate need of legal assistance, often with an extraordinary legal problem and always having found no-one to help them.

By the end of last year, I was turning away many more contactees than I could help. Like others, I take on legal aid cases and clients who can pay by only small instalment. I also do some pro bono work . However no-one can run a viable practice without a healthy balance of paying clients. In recent months several of those contacting me said they had already tried large numbers of lawyers – from legal aid lists given to them by the Ministry of Justice or from the phone book or internet. One caller told me I was 20th lawyer he had tried. Often they had already been to a neighbourhood law office but I understand that recent changes mean these lawyers there are no longer permitted to represent poor clients – only to advise. Even for those who remain eligible for legal aid, the repayment rules have got tighter and harsher and act as a severe disincentive to uptake.

Not only this but the legal problems these people present with astound me. They are not the sort of problems that I have come across before and suggest to me that life itself has become an extremely harsh experience for lots of people. These experiences lead me to believe that the rule of law star is fast fading in this country and most of us have no idea this is so.

Legal aid as we know it today.

I understand fully why such large numbers of lawyers have withdrawn from the legal aid system. Everyone who has undertaken it in recent times has a story to tell. It is a byzantine system which at its best is demeaning towards the legal aid provider and an affront to her or his professionalism . Enough has been said already about the rates of payment. These and fixed hours are appallingly inadequate in the context of the costs of running a legal practice. Those doing legal aid now should be recognised for the fact they are in part donating their work to enable the rule of law to continue.

If a person happens to be in the increasing minority who are still eligible for legal aid, and one has to be near to destitute to be eligible these days, legal aid providers have to explain to them nineteen matters relevant to their grant of aid. Of most deterrence to the client are the legal aid debt rules. The client is told they may have to repay some or all of the legal aid granted to them and that interest will be charged on all outstanding debt when the case is finished. In fact interest is charged at the rate of 8% (higher even than the Judicature rate) with a six month grace period. Further, the client is told that, in accepting legal aid, they are consenting to the ministry sending the debt to a third party debt collector and to debt collection costs being added to the debt. Also they are to understand that the Ministry can deduct the debt via payments from their income or bank account. They are also waiving legal professional privilege.

I have witnessed these potential debt recovery actions as a terrifying prospect for persons in need of legal advice and assistance. To be eligible in the first place they are living on a level of income which typically means they will have significant debt burdens already and are living hand to mouth. While they can apply for a debt write off – that is a discretionary decision which will not be considered until the end of the case and after their legal aid repayments have been set.

Last year one elderly client who lost everything following a business collapse three years previously and was living solely on national superannuation in a rented home, started having panic attacks when advised he had to repay approximately $6000 . He had been treated already for severe depression in the course of his financial catastrophe. Those symptoms returned with a vengeance following that letter. I applied for a write off ($100 fixed fee for me) explaining all his financial circumstances and three months later he was successful. One has to wonder why the Ministry didn’t write the debt off when they first set the repayments rather than creating such torment by bureaucracy. [His financial circumstances are known as both the client and lawyer have a duty to let the Ministry know of any change of circumstances that might affect legal aid eligibility. ]

A woman I advised recently, who needed to challenge the application of a government regulation that, unfairly, was preventing her from being registered in her profession and so able to earn considerably more than her minimum wage job, decided she couldn’t take the risk of incurring further debt for her and her young daughter. The legal issues were far too complex for her to try to take the case on her own. Neither could she have spared the time and her wages to do so.

The vast population who cant afford a lawyer.

With many ineligible or deterred from accessing legal aid and with the median New Zealand income at $31,200.00 and legal fees at the levels they are the facts speak for themselves. [Statistics New Zealand; NZ Income Survey, June 2014. ]

From my personal experience I estimate that at least half the population of New Zealand could not afford legal services, were they to need them. Probably the figure is closer to two thirds.

A client I acted for recently on legal aid, in a professional negligence matter involving 4 to 5 witnesses and a hearing of 2.5 days, told me he spent a whole day in Auckland City with his mother, herself a professional, knocking on doors of law firms and barristers’ chambers. The quotes for representation were around $100,000.00 and most of the money was required to be paid up front before legal work commenced.

Justice Winkleman has referred to the huge problems to the court of the unrepresented litigant. However as she also recognised there are those who can’t self represent for many varied reasons. They don’t clog the court rooms but their inability to access the rule of law is a slow social poison seeping into the fabric of our society. For example, I understand that many small business in South Auckland use gangs to collect debts rather than filing for them in the District Court. In parts of society then the rule of force rather than the rule of law operates.

Types of legal problems appearing.

Employment Court and Employment Relations Authority decisions are starting to show the tip of the malpractices in the New Zealand labour market. A 2012 ERA decision records a woman having paid $27,000 for a telemarketer job in Auckland. [Jingxin Tian v South Pacific Ltd [2012] NZERA AC 3675350263]

The employer required her to withdraw cash for the same amount she had been given in wages and return it to the employer immediately she received it. Also she had to pay her own PAYE.

Effectively she was paying to be employed.

I have acted for persons who paid an employer for a job for their daughter who refused to return the money when they withdrew from the agreement. One client was working all night at a retail outlet 6 nights a week for nothing but food. Clients have told me they work with people being paid half the minimum wage; people working up to 14 hours a day without food breaks, sick leave, holiday pay. Also of the very widespread employer practices of paying staff under the table to avoid tax or to record staff working many less hours than they actually work so as to avoid paying tax. That affects the employee in many ways including access to accident compensation.

Two years ago I acted for a new New Zealander who borrowed many tens of thousands of dollars from relatives back home to establish himself in a small takeaway franchise. To cut a long story short the franchisor embraced him into the business, suggested he pay the money straight away so he could get started and said they could sort out the contract the following week. The contract was the most oppressive my client’s lawyer had seen in thirty years of practice. He tried to negotiate its terms. Within days of advising he would not sign without changes to the contract terms, my client was manhandled out of the premises by security guards and locked out. His money was not paid back to him. That happened 18 months later only after proceedings were filed and a hearing loomed. I was about the eighth lawyer my client had contacted for help.

Some of the most disturbing and alarming cases I have dealt with recently come from citizen’s dealings with departments of state. The most vulnerable group in New Zealand, and the most stigmatised, are without a doubt income tested beneficiaries. There are increasingly large discretions held by WINZ officials largely without legal overview by independent lawyers. The rule of law fades in such situations, even despite the best meaning and well intentioned officials.

I have heard regular complaints of benefits being randomly cut off, without notice. And it taking weeks or even months and numerous phone calls or visits to WINZ offices to get them reinstated. Often these cut offs are the result of a mistake on the part of the WINZ system (eg the medical certificate had been delivered on time but hadn’t made it to the file) or for reasons any fair minded person would consider perfect justification for not being able to comply with a job seeker condition. Affected beneficiaries, including their children, who are already living a hand to mouth existence, are plunged into sudden dire poverty. Such behaviour on the part of a government department would have been unimaginable in New Zealand, even a decade ago.

One family I dealt with in November on another matter had three children under ten and were without any WINZ support other than two food grants – for months last year after the parents work stopped and the file passed between ACC and Winz. The benefit was finally paid after the landlady, who had issued an eviction order but then felt worried about their desperate plight, went down to the WINZ office with the client. Miraculously a cheque for back payment of benefit was written out. The harm inflicted on the parents and children in that time, (eg hunger, food insecurity, power insecurity, home insecurity, inability to use transport, stress, sleeplessness, family disharmony ) will have consequences for decades.

Staff have so many discretions over beneficiary entitlements and beneficiaries are so dependent on their benefit to meet their most basic needs that the vast majority are too afraid to rock the boat. For several years now persons have been unceremoniously and unlawfully removed in droves from sickness and invalids benefits and subject to punitive job search conditions for which many are not equipped mentally or physically. I am aware of some who have ended up off benefit entirely. Their only recourse is to a Medical Appeal Board (MAB) panel and then to judicial review. They cannot access the Social Security Appeal Authority.

Certainly the rules of natural justice appeared completely foreign to the MAB panel I sought to review judicially.
Likewise the assessing GP’s appeared to be acting as an arm of WINZ rather than an independent health professional.

But my proceeding never reached the courts. It was made impossible not to settle. One could sense the Ministry concern that a test case challenging the practices surrounding removal from benefit had to be avoided if at all possible.

Clearly beneficiaries have no money to employ a lawyer. Most of the problems they encounter are not covered by legal aid. Some are lucky enough to have access to unpaid beneficiary advocates. I suspect a very large number do not. It is extraordinary that in an area of major legal complexity, wide government discretions and deeply disempowered citizens that the Rule of Law is at its weakest.

Solutions:

Lady-of-JusticeWhat is evident is that there is a huge middle and low income untapped legal market. There are many cases in these markets that can be financially viable. For example one young lawyer with six years experience told me last year that she persuaded her firm to let her take a claim against an insurance company where the client was impecunious. The case was settled with full reimbursement to the firm and a very fair recovery for the client.

Last year I offered a law graduate 20 hours work a week. Other barristers have made up the rest. He has enabled me to take on many more cases from the untapped market. He is having great fun, learning tremendous and varied skills and feels a sense of satisfaction. He has worked in contract, tort, employment, insolvency, bankruptcy, human rights, professional negligence, privacy. Yes the supervision is something I wanted to avoid but the counterbalances have made it a positive successful step. There is the pleasure of seeing right done by people and their lives being put back on track or at least having had a voice and being able to put a matter to rest. There are some expressions of humble appreciation and gratitude . There is also the pleasure in helping someone launch their own career and the friendships that emerge as a consequence.

Another very wonderful thing happened to me last year. I was approached by a person describing himself as a retired judge in his eighties. He offered to provide me with pro bono assistance one day a week. Not only was I touched by the generosity but deeply impressed by the quality of the work.

He has reviewed the complex claim of a person wanting to instruct me and advised me on it; drafted a letter in a complex issue surrounding government policy and regulations and is now undertaking a series of interviews with a pro bono client with a very complex fact situation. Another barrister offered a spare room in her chambers for him to work in and interview clients in. A former colleague has contacted me on her pending retirement as a lawyer. She too has offered to do some pro bono work.

There are many graduates and new lawyers keen to throw themselves into the market and learn skills. There are many retired lawyers (be they former lawyers, barristers and judges) who may likewise be open to making such contributions for other lawyers and barristers. There are also many high earning barristers and lawyers, who may feel they have earned enough to make unpaid contributions. [Of course some already do this. Several law firms act for clients pro bono. These are often organisations as opposed to individuals however.]

How to put all this together. Perhaps the law societies or law commission could assist by providing information and discussion papers reviewing successful overseas models. Why not a firm with fee earning lawyers or a barrister’s chambers who also service the untapped market by using recent graduates supervised by senior lawyers (retired or otherwise working pro bono). Some cases would be part paying (as legal aid is) some with significantly reduced fees; some on conditional fee arrangements and some pro bono. Firms could determine their specialty be it public law, bankruptcy, employment law etc. Perhaps there could be charitable donation rebates or other fiscal incentives to undertake such work.

For income tested beneficiaries, who are completely impoverished and have ongoing dealings with government departments perhaps a special clinic specialising in social security law and advocacy is the answer. Not only is social security law highly complex but the relationship between client and department is usually in motion, rather than static. There is unlikely to be any way of earning money out of such a practice, unless it is funded. Ideally there would also be a Social Security Ombudsman, something like the Banking and Insurance Ombudsman – though publicly funded. That too could have law graduates and senior law students.

We are a profession of talented and creative people. Let’s keep talking. I am sure there are many possible solutions that can emerge from our collective thinking so that we can play our role in reversing the fast fading of the rule of law.

Frances Joychild QC.

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2 COMMENTS

  1. Disturbing and just not right. Good to have it explained so clearly. And it’s heartening to read about all the people doing pro bono work.

    But also needs the legislation changes and more adequate systems nation-wide..

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