E-discovery is an increasingly important part of the discovery process, presenting challenges and imposing responsibilities on those involved. The use of electronic communications and their role in providing critical trial evidence highlight the need for legal practitioners to be aware of the e-discovery process and the related obligations assumed by the legal practitioner.
Following the Privy Council's decision in Dymocks, the ability to seek costs against a non-party in New Zealand after a judgment has been entered and sealed is now beyond doubt. However, when litigating it is advisable to consider the ability of the other party to pay costs at the outset, and it is preferable to make an application for costs during the substantive proceedings.
Sections 48A to E of the Evidence Act 1908 empower the New Zealand courts to order a witness in New Zealand to provide both oral testimony and documentary evidence in an overseas court proceeding. Two recent High Court decisions on the application of these provisions concerned applications for assistance by way of letters rogatory from courts in the United States.
Recent cases on video link evidence in New Zealand reflect that this form of testimony is becoming increasingly common. However, the courts have shown themselves willing to scrutinize applications to give evidence by video link, and will be reluctant to allow such testimony where there are insufficient safeguards against perjury or where the credibility of the witness is a key issue.
The recent decision in the Roche Case provides a commonsense and principled approach to restricting the application of the doctrine of fraudulent concealment under New Zealand law. The decision contains an interesting and insightful discussion of the origins of the doctrine and its possible applications and limitations.
The New Zealand Parliament has voted to abolish appeals to the Judicial Committee of the Privy Council in London. The Privy Council will be replaced as New Zealand's highest court by the Supreme Court of New Zealand, which will begin hearing appeals from July 2004. The change is a landmark for the legal profession and will be watched with interest by both sides of the abolition debate.
Parliament is considering a number of proposed changes to the practice of law in New Zealand in the form of the Lawyers and Conveyancers Bill. The major changes proposed include establishing a new role for non-lawyers to undertake property transactions, introducing conditional fees, and adding further consumer protection mechanisms and complaint resolution processes.
The Privy Council, sitting as New Zealand's highest court of appeal, has held that intentional wrongdoing or conscious recklessness is not an essential prerequisite to an award of exemplary damages. However, the majority noted that cases would usually involve intentional wrongdoing with an element of flagrancy, cynicism or oppression.
The Auckland High Court recently held that the barrister's traditional immunity from negligence claims should be retained. The court held that the barrister's overriding duty to the court distinguishes him or her from other professionals. However, the court found that improvements to court processes have eroded the other public policy justifications for the immunity.
A recent decision of the Auckland High Court establishes that there is no right to disclosure of secret funding arrangements until an order for costs is made. However, failure to disclose such information still carries risks: the court may draw adverse inferences if the plaintiff refuses to provide the information voluntarily.
New High Court rules on expert evidence recently entered into force. They introduce a code of conduct which specifies that the first duty of an expert witness is to the court rather than to the party which appoints it. The new rules also empower the court to require expert witnesses to confer and attempt to reach agreement.
The Electronic Transactions Act 2002 has recently been approved. It will reduce uncertainty about the use of electronic technology in order to encourage e-commerce. The new act will place pressure on courts and counsel to adapt, particularly as regards the discovery of electronic documentation.