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Case Procedure

To the unaccustomed, whether litigants in person or most law-school graduates, court procedure can be a mystifying labyrinth of rules and deadlines.  A litigation lawyer’s role is not only to put forward their client’s case in the most effective way, but also to help navigate the process.  Here we provide a road map for the central procedural stages of a defamation case.

Pre-action procedure
Under New Zealand law, an intending plaintiff is not required to put the proposed defendant on notice about an imminent claim.  Indeed, a plaintiff may file the initiating court documents without any prior notice to the defendant.

However, probably 95% of defamation claims will be filed only after attempts have been made to resolve a dispute by correspondence between the parties.

In most cases, shortly after an alleged defamation has been committed, the plaintiff or their solicitor will write to the proposed defendant to set out the plaintiff’s concerns, including how the elements of the plaintiff’s claim are established, perhaps head off any potential defences, and also outline what the plaintiff seeks to resolve the dispute without resort to litigation – whether that may be an apology, retraction, undertaking not to repeat the statement, damages, payment of legal costs or otherwise.

The prospective defendant is not required to respond, but most do, especially where they intend to defend the claim.  Naturally if the defendant is open to resolving a dispute, there will be negotiation of the plaintiff’s demands.  If the defendant intends to defend the claim, they will normally set out any aspects of the plaintiff’s claim which they say are not established, or set out any available defences the defendant would intend to rely upon.  A back-and-forth of correspondence will generally follow, until either the parties reach a compromise and settle the dispute, the plaintiff decides to walk away from the dispute altogether, or the plaintiff issues court proceedings.

Parties are not formally bound by their representations in this early correspondence.  For example, a defendant might indicate they would intend to rely on a particular defence if the claim was filed, but they are not required to follow through with this.  Equally, a plaintiff might indicate they are going to seek a particular remedy, but also may not follow through.  That said, this early correspondence is normally one of the first pieces of evidence the Court will consider, and parties may be cross-examined on this correspondence at trial.  So, any inconsistencies or about-faces in one’s position are likely to be exploited at trial, to highlight, for instance, one’s lack of credibility.

Pleadings stage
The foundational documents in any civil case are called the ‘pleadings’.  In defamation proceedings, the pleadings comprise the ‘statement of claim’, the ‘statement of defence’, the plaintiff’s ‘reply’, and, where applicable, the ‘section 39 notice’ and ‘section 41 notice’.  The procedure for filing these documents is as follows.

A plaintiff commences their claim by filing in the Court’s Registry office two copies of a ‘statement of claim’ and ‘notice of proceeding’.  Once the Court has processed these documents—which can take anything from 20 minutes to several days—the plaintiff is returned one copy of each document, which they are then required to promptly ‘serve’ on the defendant.  (The Court retains the other copies for its file.)

Unless the defendant has authorised a specific means of service (such as by email to their solicitor), then the plaintiff must serve the documents on the defendant ‘personally’ – normally through the use of a commercial process server, although there’s nothing stopping the plaintiff doing this themselves.

When the plaintiff serves these documents on the defendant, the plaintiff is also required to provide the defendant with their ‘initial disclosure’.  This comprises all the documents which the plaintiff has either cited or has relied upon to prepare their statement of claim, as well any additional documents the plaintiff intends to rely upon at trial.  Initial disclosure is a precursor for the later stage of ‘Discovery’.  For proceedings in the High Court, the plaintiff is required to provide copies of all the actual documents as well as an indexed list of them.  For the proceedings in the District Court, the plaintiff is only required to provide a list (though is required to provide the actual documents as well, if the defendant requests them).

Upon service, the defendant will have 25 working days to file their ‘statement of defence’, and serve it on the plaintiff.  The defendant is also required to serve the plaintiff with the defendant’s own initial disclosure.  If the defendant fails to file and serve a statement of defence, the plaintiff may ask the Court to set the matter down for a hearing by ‘formal proof’.  A formal proof hearing will proceed in most cases without the defendant being present.  The Court will assess whether the plaintiff has established their claim and, if so, give judgment accordingly.

In most cases, though, the defendant will serve the plaintiff with a statement of defence.

Upon service of the statement of defence, the plaintiff will have 10 working days to file the following documents:

  • A ‘reply’ which responds to any positive allegations in the statement of defence, including in relation to any defences raised.  In response to certain types of statutory qualified privilege, the plaintiff may also at this point allege—assuming the matter arises—that (a) they requested that the defendant publish a reasonable letter or statement by way of explanation or contradiction, and (b) that the defendant did not adequately or reasonably comply with the request.
  • If the defendant raises the defence of honest opinion, and the plaintiff wishes to challenge the defendant’s claim that they genuinely held the alleged opinions when they made the allegedly defamatory statement (assuming they were opinions at all), the plaintiff has to give notice of this contention and set out any facts on which they intend to lead evidence to support it.  This is known as a ‘section 39 notice’.
  • If the defendant raises the defence of qualified privilege, and the plaintiff wishes to rebut the defence on the basis that the defendant had a predominant improper motivation to make the allegedly defamatory statement, or on the basis the defendant knew the statement was false (or was reckless, which if established is treated as knowledge of falsity), the plaintiff has to give notice of this contention and set out any facts on which they intend to lead evidence to support it.  This is known as a ‘section 41 notice’.

At this point, all the pleadings will have been filed and the proceeding will be ready to move to the next stage.

However, quite often in defamation proceedings a party will at the end of the pleadings stage—or even during the course of it—make a procedural application (called an ‘interlocutory application’).  Interlocutory applications on the pleadings normally involve things like:

  • From the defendant’s perspective, whether the meanings the plaintiff alleges arise from the statement complained, are capable of arising.
  • From the plaintiff’s perspective, whether one or more of the defences is capable of succeeding at trial on the basis the defendant has pleaded it.
  • And from both parties’ perspective, whether a relevant pleading is sufficiently explicit in its responses, or whether a party has given sufficient details of a certain allegation (known as ‘particulars’).

The usual process for resolving these interlocutory issues is, first, for there be correspondence between the parties (or their solicitors).  Then, if the matter cannot be resolved by agreement—such as with the filing of an amended pleading or the provision of further particulars—the complaining party will usually make an interlocutory application to seek an appropriate order from the Court.

Early case procedure
From the time the statement of claim is filed, the relevant Court Registry staff member (called the ‘Case Manager’) will be in regular contact with the parties (or their counsel) to ensure that the proceeding is progressing.  (Their role does not include giving legal advice to litigants in person.)

The rules of Court envisage that within 15 days after a statement of defence has been filed, the parties will liaise as to the procedural aspects of the case and file a joint memorandum to record these procedural matters, for a judge’s consideration.  This is known as the ‘First Case Management Review’.

The parties are expected to co-operatively liaise on the procedural aspects of the case, such as whether any interlocutory applications may need to be determined, and whether the proceeding is ready for the next major stage, known as ‘Discovery’.  In rare cases, such as where there will be very limited discovery and the issues are relatively simple, the parties may already in a position to ask the Court to allocate a date for the trial (often described as a ‘Trial Fixture’ or ‘Substantive Fixture’).

If upon receipt of this joint memorandum (or sometimes separate memoranda), there are material disagreements between the parties which might affect the progress of the proceeding, the Court will usually direct the Case Manager to allocate what is known as the ‘First Case Management Conference’.  In most cases, after any interlocutory issues on the pleadings are resolved, the discovery stage will follow.

One important exception is that for proceedings in the District Court, the parties are also required to prepare for and attend a ‘Judicial Settlement Conference’ (or ‘JSC’).  The parties can generally choose whether a JSC is held before or after the discovery stage.  If the parties cannot agree, then it will probably occur after discovery.

A JSC is essentially a mandatory opportunity for the parties to meet in person (accompanied by any respective lawyers) to see, with the assistance of a judge, if the dispute can be resolved by settlement or compromise.  Prior to the JSC, the parties will exchange ‘will-say statements’, which are intended to reflect what the parties and their witnesses ‘will say’ at trial in support of the claim or defence.  To encourage and promote settlement, everything said at a JSC, and all documents filed such as the will-say statements, are ‘without prejudice’.  This means that what is said at a JSC is ‘off the record’ and cannot be used against any party at trial.  Again, this is to promote free and frank discussion between the parties to resolve the dispute.

JSCs are also available in the High Court, but normally both parties have to agree in order for one to be allocated.

Discovery stage
Discovery—called ‘Disclosure’ in England—is the stage of a proceeding where the parties formally exchange relevant documents in respect of the issues to be decided in the case.  The parties exchange these documents by way of an affidavit, which deposes that the party has made all the appropriate searches for relevant documents, and they provide a ‘Schedule’ that lists the documents.  These are normally entitled ‘Affidavit of Documents’ or ‘List of Documents’.

Subject to a few exceptions, parties are required to discover all relevant documents in their possession or control.  The starting point for what is ‘relevant’ will be the issues that arise on the parties’ pleadings.  So, for example, if the defendant does not raise the defence of truth, the plaintiff should not be obliged to disclose documents relevant to the truth or falsity of the allegations sued upon.

As to the exceptions on what documents are ‘discoverable’, the main category of documents in this respect are those that are ‘Privileged’.  There are various kinds of privilege, which are set out in the Evidence Act.  The most common privilege invoked for withholding certain documents is that they are subject to ‘Legal Professional Privilege’ – i.e. confidential communications and documents shared between a client and their lawyer for the purpose of obtaining advice.  Somewhat more rarely, a party may also withhold providing a document, or part thereof, on the basis that it is ‘Confidential’.

In the old days, after receipt of the other party’s affidavit of documents, there would be a period of ‘Inspection’ where one party or their representative would visit the other party’s solicitor’s office and literally ‘inspect’ the documents listed in the affidavit.  They could then select and take copies of any documents they wished – normally those that would advance their client’s case or damaged their adversary’s case.  Nowadays, when a party serves their affidavit of documents, they will provide an electronic file containing all the documents for inspection.  USB sticks are still common, but increasingly one party will simply provide the other a link to Dropbox or other cloud-based service, where the documents for inspection can be downloaded.  The ‘Inspection’ period still serves a purpose—to give the parties time to review each other’s documents—but doesn’t have all the protraction and rituals of the past.

After inspection is complete, quite often disputes will arise over what has—or more specifically, what has not—been provided.  It is common for parties to allege that the other has not ‘discovered’ all the documents they were required to disclose.  Again, if the issue cannot be resolved between the parties, such as by the provision of a ‘supplementary’ affidavit of documents, then quite often there will be an interlocutory application filed.

In addition, quite often during the Discovery stage—though it can actually happen at any stage—one party or the other will require the opposing party to answer some questions, normally on oath by affidavit.  When a party requires this of the other party, it is called ‘administering interrogatories’.  There are various rules about the types and form of questions that can be asked.  Under defamation law, if a defendant raises the defences of honest opinion or any kind of privilege, the plaintiff cannot normally interrogate as to the defendant’s sources of information or grounds of belief.

Again, if there are discrepancies between the parties over the interrogatories asked or the answers given (or not given), then the parties may file interlocutory applications to have the Court decide what should or should not be answered.

Later case procedure
When the Discovery stage is complete, the Registry will normally allocate a ‘Further Case Management Conference’.  By now, unless there are any outstanding interlocutory applications to be heard, the parties should be in a position to seek a Trial Fixture and timetabling directions for the appropriate pre-trial steps.

By this time, the parties should have a pretty good idea on the number of days required for a trial, having regard to the number of witnesses the parties anticipate will be called, including any expert witnesses, and the nature and breadth of documents that the Court will be asked to consider at trial.

For proceedings in the District Court, neither party may elect a trial by jury.  However, for defamation proceedings in the High Court, either party may elect trial trial by jury by giving formal notice to this effect.  The Further Case Management Conference is probably the most appropriate time for the parties to decide upon the issue, although there is nothing stopping either party from giving notice earlier in the proceeding – which many tend to do for valid tactical reasons.

If one party files a notice to elect trial by jury, the other party can object by filing an interlocutory application to set aside the jury notice; effectively, for an order that the trial will proceed before a judge alone.  The Court may do so if the case would:

  • involve mainly the consideration of difficult questions of law; or
  • require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation that cannot conveniently be made with a jury.

Once the mode of trial is resolved (judge-alone or jury), and the trial length can be reasonably estimated, the Registry will allocate a Trial Fixture.  Normally the parties will agree on a timetable for the pre-trial steps, but if they can’t agree the Court will set an appropriate timetable.

Pre-trial steps
The timetable for the pre-trial steps will normally depend on the complexity of the case, and any agreement the parties have come to in this regard.  But in any event the following steps will occur:

  • The plaintiff will file and serve their written ‘briefs of evidence’ for all the witnesses they intend to call in support of the claim.
  • The defendant then has some time to file and serve their own ‘briefs of evidence’, either in resistance of the claims or in support of any defences.
  • The plaintiff then has some time to file and serve ‘briefs of evidence in reply’.  Although it makes more sense that the plaintiff would only respond to the defences raised when they file their briefs of evidence in reply, normally the plaintiff will have filed evidence in this regard when they file their initial briefs of evidence.
  • The plaintiff is also normally responsible for preparing the ‘Common Bundle’ – all the documents that both parties intend to rely upon at trial, whether in support of their claim or for cross-examination purposes.  The exercise is formally a joint venture, with the defendant required to co-operate, but it is the plaintiff who will normally bear the workload for this.  Further, for High Court trials, there is now a general requirement to prepare electronic casebooks, with full hyperlinks between the various documents.
  • Some time before the trial, the parties will also usually file a joint chronology (or their own chronologies) comprising a narrative of relevant facts, particularly those facts that are not formally in dispute (e.g. that the defendant published the statement on a particular date; that the statement identified the plaintiff; when the claim was filed, etc.).
  • Finally, in a judge-alone trial, the plaintiff will normally file and serve their opening written submissions 5 days before the trial begins.  (Not so in a jury trial.)

Sometimes there is also one final interlocutory pre-trial argument, which deals with any challenges to evidence that a party intends to present in Court – either in the briefs of evidence or in the documents the parties have tendered for inclusion in the Common Bundle.  These challenges are on evidential grounds, and will normally be dealt with by the trial judge.

Trial
A trial is structured as follows:

  • If the case is being heard by a jury, the jury is empanelled and the trial judge presents their opening remarks to the jury about the process.
  • After this occurs—or if the case is being heard by a judge alone—the trial commences with the plaintiff presenting their opening submissions (or ‘opening address’ if the case is being heard by a jury).
  • The plaintiff then calls all their witnesses in turn, with the defendant having an opportunity to cross-examine each of the plaintiff’s witnesses, and the plaintiff being permitted to ask their witnesses any additional questions that arise out of cross-examination.  The judge may also ask questions, but not cross-examine.
  • When the plaintiff has called all their witnesses, the plaintiff formally ‘closes their case’.
  • The defendant presents their opening submissions (or opening address with a jury).
  • The defendant then calls all their witnesses, with the plaintiff having an opportunity to cross-examine the defendant’s witnesses, and the defendant being permitted to ask their witnesses any additional questions that arise out of cross-examination.   Again, the judge may also ask questions, but not cross-examine.
  • When the defendant has called all their witnesses, the defendant presents their closing submissions (or closing address with a jury).
  • The plaintiff then concludes the trial by presenting their closing submissions (or closing address with a jury).
  • If the trial has been heard by a jury, the trial judge will then present their ‘summing up’ or ‘closing remarks’ to the jury, to guide the jury on the relevant law and key aspects of the evidence.  The jury will then retire.  After they have had a chance to ‘deliberate’—which can be a matter of minutes, hours or days—they will then deliver their ‘verdict’.
  • When the verdict is delivered, the judge may ‘enter judgment’ in accordance with the verdict, or give the parties some time to file any post-trial interlocutory applications, such as for a retrial.  One quirk in New Zealand’s civil procedure is that this application will be heard by the trial judge and may include what would be ordinary grounds of appeal, such as that impermissible evidence was led, or that the trial judge misdirected the jury.  So the trial judge may well have to review their own decision-making process.  England and Australia do not follow this process, opting to leave such matters to an appellate Court.  But the New Zealand view is that the trial judge is suitably placed to review their own conduct of the trial and decision-making.  In any case, the trial judge will hear the post-trial applications—normally a matter of weeks or months after the trial—and either dismiss the application and enter judgment in accordance with the jury’s verdict, or will order a retrial, or very rarely will enter judgment for the party against whom the jury gave their verdict.
  • If the trial has been heard by a judge alone, the judge will normally ‘reserve their decision’ – which means they’ll go away and consider the pleadings, evidence and submissions presented, before releasing their ‘judgment’ in writing.  Depending on the length and complexity of the trial, this may be a matter of days, weeks, or months after the trial.  It would now be a very rare case where the judge was prepared to deliver an oral judgment following a trial.
  • Once judgment is entered—whether following a judge alone or jury trial—the Court then deals with the issue of costs.

Appeals
Parties to civil proceedings have the right to appeal the judgment of the trial court.

An important point not to overlook, is that almost all interlocutory decisions made before the trial—applications over pleadings, applications over discovery, etc.—may themselves be the subject of appeals.  However, to appeal an interlocutory decision, the unsuccessful party will often need to obtain ‘leave’ (permission) to do so, whether by the judge who made the interlocutory decision, or if that fails, from the relevant appellate court (the High Court for interlocutory decisions of the District Court; and the Court of Appeal for interlocutory decisions of the High Court).  Leave is not required for interlocutory decisions that have struck out  statements of claim or defence (or parts thereof), or that have entered summary judgment; the unsuccessful party may appeal as of right.  One grey area for which there is not normally any right of appeal, is rulings on issues of admissibility of evidence, which normally happen very shortly before the trial.  These will usually not be appealable before the trial, but may serve as grounds for appealing once the trial is over.

Once the trial is over, the unsuccessful party has one guaranteed right to of challenge to an appellate Court (and very rarely a successful plaintiff might also appeal on the basis that the damages award was not high enough).  The process is as follows:

  • For trials heard in the District Court, the unsuccessful party may appeal to the High Court, where the appeal is heard by a single judge.
  • For trials heard in the High Court, the unsuccessful party may appeal to the Court of Appeal, where the appeal is heard by a panel of three judges (or in an exceptional case, five judges may be empanelled).
  • Further appeals are possible, but the unsuccessful party on the appeal must seek leave to appeal to the next Court.
  • If, following a High Court decision of a District Court trial judgment, leave to appeal to the Court of Appeal is not granted, then the High Court’s appeal decision is final.
  • Similarly, if following a Court of Appeal decision of a High Court trial judgment, leave to appeal to the Supreme Court is not granted, then the Court of Appeal’s decision is final.
  • If the proceeding manages to find its way to the Supreme Court, which has strict criteria for accepting an appeal, then the appeal is heard by a panel of five judges.  Whatever the Supreme Court decides is final and the end of the road.