Please note: Articles on this website were originally published by CourtKeys.com in 2015 and may now be out of date. Revised and updated content is included in Civil Litigation for Non-Lawyers [available here]. Disclaimer
On this page:
- District Court conferences
- First case management conference
- Appearing in a first case management conference
- Short trials
- Simplified trials
- Full trials
- Judicial settlement conference
- Will say statements for judicial settlement conferences
- Attending a judicial settlement conference
- Second case management conference
This part deals with some of the different conferences that may be allocated in the course of a District Court case.
First case management conference
Case management conferences are convened to address procedural matters necessary to ready a case for trial. Rule 7.2 of the District Court Rules 2014 provides:
[…]
(3) The agenda for the conference is –
(a) the matters set out in Part A of Schedule 3 (with any adaptations ordered by the Judge for the purposes of that conference); and
(b) the hearing, and if practicable the disposal, of any outstanding interlocutory application; and
(c) determining in accordance with rule 10.1 whether the mode of trial is to be a short trial; and
(d) if a short trial is not allocated, directing that a judicial settlement conference under rule 7.3 must be held as soon as practicable after disposal of the matters referred to in paragraphs (a) and (b) unless –
(i) the Judge directs otherwise; or
(ii) the parties agree to participate in alternative dispute resolution; and
(e) other appropriate matters that have already been discussed by the parties.
(4) The parties must either file a joint memorandum addressing the Part A of Schedule 3 matters and the other matters referred to in subclause (3) no later than 10 days before the conference, or file separate memoranda addressing those matters in accordance with subclause (5).
(5) If separate memoranda are filed, the plaintiff or applicant must file the first memorandum stating that party’s position on the matters in Part A of Schedule 3 and the other matters referred to in subclause (3). That memorandum must be filed 10 working days before the conference, followed no later than 5 working days before the conference by memoranda from the other parties, each memorandum stating the party’s agreement or disagreement with memoranda already filed and, in the case of disagreement, the reasons for disagreement and the different position contended for.
(6) Memoranda filed under subclause (4) or (5) may also address matters that fall within subclause (3)(e).
Regarding trial allocation, rule 10.1 of the District Court Rules 2014 provides:
(1) The modes of trial available in a proceeding are –
(a) the short trial:
(b) the simplified trial:
(c) the full trial.
(2) In deciding the appropriate mode of trial, the court may have regard to the following:
(a) the number of parties:
(b) the complexity of the issues:
(c) the amount at stake:
(d) proportionality:
(e) the nature of the action:
(f) party requests:
(g) any other matter the court considers relevant.
See those parts of this text deal with short trials, simplified trials and full trials below for more about those.
First case management conference memorandum
Part A of Schedule 3 of the District Court Rules 2014 provides:
A joint memorandum or separate memoranda must be filed and served in accordance with rule 7.2 as to –
(a) whether initial disclosure has been provided; and
(b) whether the pleadings and the principal documents disclosed with them adequately identify the issues; and
(c) whether further discovery is required before a judicial settlement conference or short trial; and
(d) whether additional parties should be joined; and
(e) the categorisation of the proceeding in relation to costs; and
(f) any other matters.
Note: The parties should discuss and endeavour to agree on the matters listed in this Part of the Schedule.
Appearing in a first case management conference
Case management conferences are convened to address those procedural matters set out in rule 7.2 of the District Court Rules 2014 as quoted previously. Some arguments or issues may be able to be dealt with or ‘summarily dismissed’ at the conference, although an interlocutory application is normally required. See the parts of this text on appearing in court for how you might go about presenting yourself and addressing the court at a case management conference.
Short trials
A short trial is intended to be the most basic and quickest form of trial in the District Court. Rule 10.1(3) of the District Court Rules 2014 provides:
The short trial is intended for claims where the court considers that 1 or more of the following apply:
(a) the case can come to a hearing quickly:
(b) the issues are relatively uncomplicated or a modest amount is at stake:
(c) the trial time is not likely to exceed a day.
The features of a short trial are set out in rule 10.4 of the District Court Rules 2014. To summarise subsections (1) and (2) of that rule:
The only evidential statements allowed to be produced are affidavits of evidence.
Supplementary evidence or oral evidence in reply is allowed.
Bundles of documents are required for trial.
A judicial settlement conference is not required.
Time limits for a party to present his or her case are:
Examination of witnesses 15 minutes per witness
Cross-examination of witnesses 45 minutes per witness
Re-examination of witnesses 10 minutes per witness
Submissions for a party 30 minutes per party
These rules are qualified though, in that rule 10.4 goes on to provide:
(3) However, the court may, for good reason consistent with the objective of these rules, extend the total time available to a party.
(4) The other provisions of these rules that relate to interlocutory applications, evidence, and the conduct of a trial apply to the proceedings to be dealt with by short trial only to the extent that the Judge so orders.
A short trial might be appropriate where the evidential and legal issues are ‘narrow’ or of relatively restricted scope. Absent any affidavits you might budget a minimum of half a day for each witness to give their evidence, be cross-examined and re-examined in even some of the simplest cases, so matters on trial would have to be extremely focussed and straightforward for evidence to be adduced within the short trial time limits. However, the requirement for affidavit evidence beforehand could significantly reduce the amount of evidence that might need to be given orally from the witness box on the day. It may be difficult to assess whether a short trial might be appropriate without first assessing the affidavit evidence. A judge might be able to provide some guidance on whether a short trial is appropriate at a case management conference.
Preparing for a short trial
Rule 10.3 of the District Court Rules 2014 provides a timetable for the parties to prepare their cases:
(a) the court or Registrar must set a date for the trial; and
(b) within 15 working days after the date of the decision to hold a short trial, each party must file a serve on the other parties –
(i) that party’s affidavits of evidence-in-chief; and
(ii) copies of any further documents on which that party intends to rely; and
(c) once a party has received the affidavits of evidence-in-chief, the receiving party must, by notice given to the other party within 10 working days after the date of receipt of those affidavits, specify which of the other party’s witnesses the receiving party requires to be available for cross-examination at the short trial; and
(d) rules 9.2 to 9.6, 9.8, 9.11 and 9.14 apply to a short trial as if the reference in those rules to briefs or to briefs served under rule 9.7 were references to affidavits of evidence served under this rule.
Those rules referred to in rule 10.3(d) relate to bundles of documents and briefs of evidence. Their headings:
9.2 Exchange of documents and index
9.3 Timing
9.4 Preparation of common bundle
9.5 Consequences of incorporating document in common bundle
9.6 Consequences of not incorporating document in common bundle
9.8 Supplementary briefs
9.11 Compliance with Evidence Act 2006
9.14 Privilege and admissibility not affected by briefs
See those parts of this website dealing with briefs of evidence, bundles of documents and affidavits for more on those items.
Simplified trials
Simplified trials may offer a kind of middle ground between short and full trials. Rule 10.1(4) provides:
The simplified trial is intended for claims where the court considers that 1 or more of the following apply:
(a) the duration of the hearing is not likely to exceed 3 days:
(b) there is some complexity raised by the issues:
(c) the amount of money involved is more than modest:
(d) 1 or more expert witnesses will be giving evidence.
Features of a simplified trial are set out at rule 10.7 of the District Court Rules 2014. To summarise sections (1) and (2) of that rule:
Affidavits of evidence and copies of documents are to be given in accordance with rules 10.5 of the District Court Rules 2014.
Supplementary evidence or oral evidence is allowed by way of reply.
Witnesses may appear in a simplified trial as allowed by rule 10.6 of the District Court Rules 2014.
Bundles of documents are required to be produced for trial.
Time limits for a party to present his or her case are:
Examination of witnesses 20 minutes per witness
Cross-examination of witnesses 60 minutes per witness
Re-examination of witnesses 10 minutes per witness
Submissions for a party 30 minutes per party
These rules are qualified though, in that rule 10.7 goes on to provide:
(3) However, the court may, for good reason consistent with the objective of these rules, extend the total time available to a party.
(4) The other provisions of these rules that relate to interlocutory applications, evidence, and the conduct of a trial apply to the proceedings to be dealt with by simplified trial only to the extent that the Judge so orders.
A simplified trial affords only a little more time for the evidence of each witness and no more time for submissions. So the main difference with short trials is that simplified trials may require 3 days in court whereas short trials are intended to conclude in just 1 day. It is the volume of witnesses rather than the volume of their evidence that sets simplified trials apart from short trials. A short trial might be called for where there are one or two witnesses, and a simplified trial where there are 5 or 6. Keep in mind that both forms of trial would need to deal with the witness evidence within the prescribed timeframes unless there are good reasons for extension.
Full trials
A full trial is called for where neither a short or simplified trial would do. That is set out at rule 10.1(5) of the District Court Rules 2014. Parts 8 and 9 of those same rules apply without limitation to cases that go to full trial. Part 8 concerns discovery, inspection and interrogatories whereas part 9 relates to evidence. See those parts of this text dealing with discovery and evidence for more.
Judicial settlement conference
A judicial settlement conference is expected before a case proceeds to a simplified or full trial. They are not ordinarily convened where a short trial is appropriate. Rule 7.3 of the District Court Rules 2014 is relevant. It includes:
[…]
(2) The purpose of a judicial settlement conference is to give the parties to the proceeding an opportunity to negotiate a settlement of the claim or any issue.
(3) The parties must file and serve on the other parties copies of their will say statements and a memorandum identifying the issues and any settlement negotiations at least 10 working days before the date set for the conference.
(4) Will say statements and the memorandum required by subclause (3) that are produced at a judicial settlement conference are not admissible at any trial of the proceeding.
(5) A judicial settlement conference must be convened by a Judge and held in chambers.
(6) A Judge who convenes a judicial settlement conference may assist the parties in their negotiations, but that Judge must not preside at the trial (if any) unless –
(a) all parties taking part in the conference consent; or
(b) the only matter for resolution at the hearing is a question of law.
[…]
(8) If the Judge assisting the parties at a judicial settlement conference is satisfied that the parties are unable to settle the claim or issue, the Judge must, as soon as practicable, –
(a) indicate that he or she has formed that view; and
(b) adjourn the proceeding to a second case management conference under rule 7.4.
[…]
So a judicial settlement conference is kind of like a mediation where a judge acts as the mediator. They ordinarily proceed on a ‘without prejudice’ or ‘privileged’ basis, so things said by a party in such a conference could not be used against that party in court later on. Section 57(1) of the Evidence Act 2006 provides:
A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to the dispute if the communication –
(a) was intended to be confidential; and
(b) was made in connection with an attempt to settle or mediate the dispute between the persons.
See those parts of this text dealing with mediation for more about mediation in general.
Will say statements for judicial settlement conferences
The District Court Rules 2014 define a will say statement at rule 1.4:
will say statement, in relation to a witness, means a statement that records the essence of what the plaintiff or defendant (as the case may be) believes the witness will say at trial
So a will say statement may be less detailed than an affidavit or brief of evidence because it merely records the ‘essence’ of the evidence only. Moreover, it need not strictly record what a witness will actually say if the matter went to trial: It only records what you believe the witness will say.
See those parts of this text dealing with affidavits and briefs of evidence for more about recording evidence in general.
Judicial settlement conference memorandum
A memorandum for a judicial settlement conference must identify the issues involved in the case and also describe any settlement negotiations that might have taken place.
It can be helpful to go a little further and record each party’s position on each issue, as best those positions are understood. For example, rather than merely identifying that there is an issue about whether the defendant was entitled to cancel a contract for breach, you might say:
The defendant is of the position that he validly cancelled the contract for breach by the plaintiff.
The contract required the plaintiff to paint the defendant’s house.
The defendant says the plaintiff did not paint the house to an acceptable standard, entitling him to cancel.
The plaintiff says he had not finished painting and had only put one coat of paint on before the defendant purported to cancel.
The defendant argues the plaintiff packed up and left the house around midday on Friday, 20 February 2015.
The plaintiff says that, having applied the first coat of paint, he packed up for the weekend intending to return the following Monday and finish the job.
Attending a judicial settlement conference
Judicial settlement conferences are not court hearings. A judge is involved but the conference proceeds more like a mediation than anything else. A mediation is like a negotiation between the parties involving a third person who oversees and assists that negotiation. That can involve ensuring all parties have an opportunity to say what they need to and important points are not overlooked or underappreciated. A judge plays that role in a judicial settlement conference.
Little is required in the way of formality in a judicial settlement conference, although you would do well to dress appropriately, turn off your mobile phone, show respect for the judge, do not speak over someone already speaking and do not stoop to mockery or insults. See those parts of this text on appearing in court for more on presentation and general conduct in a courtroom context.
Each party should be given an opportunity to set out his or her views on the issues in dispute. Reference may be made to the will say statements and memoranda filed for the conference but there is no requirement for formal submissions either written or oral. The role of the judge in this context is not to decide on the rights and wrongs of the case but make sure the parties get to say what they feel they need to say to one another. The parties might go to some lengths to persuade the other of their case in order to negotiate better settlement terms but no point of fact or law need be established in a settlement conference.
The point of a judicial settlement conference is to see whether the parties might be able to agree to resolve their dispute between themselves. The conferences almost inevitably come down to the question of what each party would accept to put their dispute to rest. Often, and regardless of who is right and who is wrong, the parties might settle because it makes sense to do so from a commercial point of view. Using an example:
1. Say the plaintiff claims $70,000.
2. There is at least some question over whether the plaintiff is entitled over the full amount claimed.
3. Therefore, there is a risk that the plaintiff might not win its case, either in full or in part. That is called ‘litigation risk’.
4. There is always some amount of litigation risk in any court case. Whether the litigation risk is big, small or somewhere in between depends on the particular facts and law involved.
5. Now say that it might cost the plaintiff $20,000 in legal fees and other expenses if the case were to go to trial.
6. The plaintiff would ordinarily have to pay those costs regardless of whether it wins or loses its case. Regarding legal fees, lawyers in New Zealand normally charge for services performed rather than results achieved. That is, at least in part, because they have no influence over the facts of a case or the law that applies. They are often engaged to make the best of a difficult situation, and sometimes not very much can be done to improve a client’s situation at all.
7. Costs are at the discretion of the court, so there is a chance that the plaintiff would not be awarded costs even if successful. Furthermore, if there is no contractual entitlement to actual legal costs against a defendant, plaintiffs might only expect an award of two thirds of their actual legal costs at best. So there is a risk the plaintiff will not win legal costs from the defendant, either in full or in part, even if it wins its case. The plaintiff’s costs in the example are nearly 30% of the claim.
8. Of course if the plaintiff losses its case then it faces the prospect of having to pay a defendant’s legal costs as well as its own. If the plaintiff’s costs are $20,000 and the defendant’s costs are the same, the plaintiff could end up paying $40,000 for nothing. That is more than half of the claim.
9. Defendants face a similar difficulty: They could end up having to pay the amount of the plaintiff’s claim, plus the plaintiff’s costs and plus their own costs if the case went to trial.
10. So litigation risk gives all involved some incentive to settle regardless of the rights and wrongs of a case. Judges in a judicial settlement conference emphasise this just as mediators do in mediations. The lower the value of a claim the more pressure the parties might expect to be put under to settle from a purely commercial perspective.
11. There can of course be other factors involved in a settlement negotiation. The strength of a party’s case can be the most obvious factor, but there can also be some interest in maintaining or rebuilding a relationship with the other party or concluding a dispute in order to focus on more productive things.
12. Taking the commercial realities of litigation into account as well as other factors present, a defendant might do well to offer $50,000 to settle the $70,000 claim if his or her defence is not strong. A plaintiff, on the other hand, might accept $20,000 to settle if he or she is not confident of the claim.
Second case management conference
Rule 7.4 of the District Court Rules 2014 provides for second case management conferences:
(1) Unless otherwise ordered by a judge, no later than 10 working days after a judicial settlement conference is held under rule 7.3, the Registrar must fix the date for the second case management conference for the proceeding.
(2) The agenda for the second case management conference is set out in Part B of Schedule 3.
(3) The parties must either file a joint memorandum addressing the Part B of Schedule 3 matters no later than 10 working days before the conference, or file separate memoranda addressing those matters in accordance with this rule.
(4) If separate memoranda are filed, the plaintiff or applicant must file the first memorandum stating that party’s position on the matters in Part B of Schedule 3. That memorandum must be filed no later than 10 working days before the conference, followed no later than 5 working days before the conference by memoranda from the other parties, each memorandum stating the party’s agreement or disagreement with memoranda already filed, and, in the case of disagreement, the reasons for disagreement and the different position contended for.
(5) The joint memorandum referred to in subclause (3) may be combined with any joint memorandum filed in relation to discovery under rule 8.11.
(6) A separate memorandum referred to in subclause (4) may be combined with any separate memorandum filed in relation to discovery under rule 8.11.
(7) 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.
(8) It is the duty of all parties to a proceeding for which a date for hearing or trial has been allocated to notify the Registrar, without delay, if the proceeding is settled.
Part B of Schedule 3 of the District Court Rules 2014 is exhaustive, covering:
1. matters previously raised at the first case management conference;
2. the mode of trial;
3. whether the pleadings ought to be amended so as to identify the issues;
4. whether additional parties should be joined;
5. discovery;
6. any interlocutory applications;
7. readiness for trial;
8. procedural steps to be taken leading up to trial such as the close of pleadings date, the timetable for written briefs, proposals for the presentation of any expert evidence and similar matters; and
9. anything else that ought to be dealt with.
Part B of Schedule 3 ends with:
Note: The parties should discuss and endeavour to agree on the matters listed in this Part of the Schedule.
Appearing in a second case management conference
Case management conferences are convened to address those procedural matters set out in rule 7.4 of the District Court Rules 2014 as quoted. Some arguments or issues may be able to be dealt with or ‘summarily dismissed’ at a conference, although an interlocutory application is normally required. See the parts of this text on appearing in court for how you might go about presenting yourself and addressing the court at a case management conference.
Note: This content was originally published by CourtKeys.com in 2015. Disclaimer