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New Twist to Impact of Legal Aid Delays

18 December 2008: For immediate release

New Twist to Impact of Legal Aid Delays

In a new twist to lawyers’ concerns about legal aid delays, the Wellington High Court has ruled, on 15 December 2008, that difficulties over the grant of legal aid are the lawyer’s problem.

The Court went on to say that a lawyer’s duty is to take all appropriate steps to ensure that court timetables can be met, regardless of funding difficulties and delays.

The lawyer in the case in which the High Court made this statement, Sonja Cooper, is acting for about 650 people who are bringing claims against the State for historic physical, sexual and psychological abuse that they suffered while they were in psychiatric hospitals, in the care of the former Department of Social Welfare and Division of Child Welfare, or in the Armed Forces. Almost all of these people are legally aided.

Sonja Cooper said: “This judgment has significant access to justice implications, particularly for lawyers acting for legally aided clients.” Ms Cooper noted that the New Zealand Bill of Rights Act is supposed to guarantee the right to justice. “It is also supposed to guarantee the right for every citizen to bring civil proceedings against, and defend civil proceedings brought by the Crown. The legal aid system should support the rights under the Bill of Rights Act by providing payment to lawyers who undertake work for citizens in this position. The reality is somewhat different. The Wellington High Court also appears to be saying that the efficient administration of the courts should take precedence over citizens’ rights to proper legal representation and access to justice. This cannot be right.”

Ms Cooper said: “What the Court seems to be saying is that lawyers have to either expend potentially many thousands of dollars of their own money and time, without any guarantee of payment, or else ask the Court to withdraw as the client’s lawyer.” Ms Cooper went on to say: “Neither of these options is acceptable. For someone like me, who acts for hundreds of legally aided clients and who undertakes expensive trial work, the logical conclusion of being forced to act without guarantee of payment could mean my ultimate bankruptcy. If that was to happen, I could not practice law at all. The alternative is to withdraw as counsel for clients who are already victims of abuse and who have suffered life-long damage as a result. Many are illiterate and/or struggle to deal with day to day aspects of their lives. To expect those clients to manage the complexities of the court process and to meet court deadlines is unrealistic and totally unjust.”

Ms Cooper is referring the matter to the New Zealand Law Society. The impact of the High Court judgment is significant and affects, particularly, all legal aid lawyers undertaking complex and expensive civil and criminal trials before the courts. Ms Cooper stated: “All of the other parties involved in litigation against the State are fully funded at all times. The courts, the Crown and the Legal Services Agency, for that matter, do not need to worry about whether they can afford to continue working for their clients, or risk financial ruin. Those other agencies have the full weight and financial backing of the State behind them.”

Ms Cooper calls on the new Attorney-General to look into this issue. Ms Cooper said: “There are important human rights issues raised by the Wellington High Court judgment. I am concerned that New Zealand is becoming a place in which justice through the courts will only be available to those who can afford it.”


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