Open Letter to the Minister of Justice: Appeal for Improved Access to Justice for Canterbury Earthquake Claimants

With waiting periods of up to 2 years and more, the "fast-track" earthquake litigation system set up by the previous government has clearly failed. Empowered Christchurch has sent an open letter to the Minister of Justice, Andrew Little, with copies to the Attorney-General and the Minister for the Earthquake Commission, calling for seven steps to improve access to justice for earthquake claimants.

Christchurch, 10 January 2018:

There have been many obstacles to justice for Canterbury earthquake claimants over the last seven years. In a situation where the principal defendants include a Crown entity, a Crown-owned insurer and large Australian insurance corporations, the separation of powers principle is of critical importance. So how well has the New Zealand court system performed in this regard?

In the so-called "fast-track" litigation system, the government has a locomotive pulling in the opposite direction. Claims are kept out of the courts through generous funding and the promotion of "advisory services". With just a small number of court decisions, no precedents are set. Judicial settlement conferences involving no rulings are also favoured by the Courts.

As a result of these mechanisms, of the 1,015 earthquake cases filed since the earthquake litigation list was set up, only 42 have progressed as far as a court hearing and judgment. In the year to 30 September 2017, a mere 6 cases were disposed by judgment. Almost 75% of all cases have been assigned to one judge and one associate judge, who are both based in Christchurch. Only a single case has been assigned to one of the three other Christchurch-based High Court judges.

General proceedings in the High Court take an average 381 days to conclude. The average waiting time between filing and a court hearing is currently 18 months. If insufficient time is assigned to hear the evidence, cases are then adjourned, adding a further 6-9 months to the wait. On top of which, claimants must prove their losses, which involves commissioning a series of expensive technical reports in addition to lawyers'/solicitors' fees and court charges.

The Crown-controlled insurer, Southern Response, may use the Limitation Act to deny the validity of claims after 4 September 2018. Many private insurance companies, having delayed claims settlements for seven years, have already begun to use the Limitation Act as a defence against litigation.

In light of these obstacles, Empowered Christchurch has asked the Minister to improve access to justice for Canterbury claimants by taking the following steps:

• Extend the limitation period for earthquake cases to give claimants improved access to justice and the opportunity to pursue their claims in the courts

• Assign additional judges to deal with the growing backlog of earthquake list claims

• Apply a minimum period of 12-15 days for each claim

• Ensure that land information and reports from professional surveyors are included as evidence, both to ensure compliance with the Building Code and to address land issues such as subsidence, erosion and increased flood risk

• Reduce High Court hearing charges, and increase the threshold for legal aid for individual claimants

• Withdraw funding for the Residents’ Advisory Service or establish a service that is genuinely independent of government and insurers

• Amend current regulations to facilitate litigation funding and group/class actions

You can read the full letter to the Minister here: http://empoweredchristchurch.co.nz/an-open-letter-to-the-minister-of-justice/

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