Access to Justice – Working Collaboratively Towards A New Norm
By John Goddard, Barrister, Lambton Chambers
In December 2019, I decided to abandon a career aspiration of becoming a partner in a law firm and to work as a barrister sole. I made this decision after reflecting on my father’s legacy to the legal profession as a leading defamation lawyer and Chief Judge of the Labour and Employment Courts between 1989 and 2005. I was inspired by his achievements in the law to want to create my own legacy.
But what is legacy? My thinking was heavily influenced by acting for clients in a number of different contexts who failed to achieve an appropriate remedy in their particular circumstances and that legal costs had acted as a barrier and could be seen as contributing to unsatisfactory outcomes. I wanted to work under a different model that encapsulated the following principles:
A commitment to access to justice as a fundamental human right.
A human rights approach which incorporated the United Nation’s Principles on Business and Human Rights (commonly referred to as the Protect, Respect and Remedy framework).
An approach to law which recognises Te Tiriti o Waitangi as Aotearoa’s founding document and a Treaty-based approach as having authenticity and legitimacy in Aotearoa.
A commitment to celebrating diversity, i.e a ‘they are us’ approach.
A commitment to achieving a reasonable work/life balance.
A commitment to prioritising the physical and mental health of myself, my family and colleagues.
But would the practice live up to the theory? Could I walk the talk?
In February 2020, I commenced practice as a barrister sole. On 29 March 2020, I applied to become approved as a lead provider for the provision of Legal Aid Services (Civil). My application was approved on 22 April 2020. This processing time occurred when the country was subject to Level 4 restrictions as part of the government’s response to Covid-19.
Each grant of legal aid requires a separate application. An application covers both legal costs and disbursements (including expert costs). If more hours are necessary, then a further application must be submitted. There are two different forms for invoicing depending on whether a grant of legal aid contains a fixed fee component. I have found processing times to be generally efficient, remuneration low and personal satisfaction extremely high.
Matters which I have worked on under grants of legal aid have included:
The first ever appeal to the Court of Appeal of New Zealand sitting as the Court of Appeal of Tokelau. The legal work in preparing the employment-related appeal was substantial and ground-breaking. Without legal aid, no appeal would have been filed.
Two sexual harassment claims which were resolved in mediations provided by the Human Rights Commission. My client noted that although mediation was free, without her legal aid grant, she would have struggled to achieve such successful outcomes.
Two claims which are in different stages of case management in the Canterbury Earthquakes Insurance Tribunal.
Two other employment claims, one of which has resulted in a successful settlement.
A privacy claim in the Human Rights Review Tribunal which was resolved in favour of my client when she argued successfully that she should be removed from proceedings.
An appeal in the District Court of a decision of the New Zealand Teachers’ Disciplinary Tribunal.
In each of these matters, affordable advocacy has resulted in my client’s interests being promoted in a positive manner. Without legal aid grants, it is likely that my clients would either have been outmuscled by their opponents who generally had access to much greater financial and legal resources or would have ceased to engage with dispute resolution processes.
Making justice accessible and affordable has also enriched mediation and other dispute resolution mechanisms by presenting my clients’ narratives clearly and succinctly and by being able to assign roles and responsibilities in ways that make dispute resolution processes achieve their potential.
Working under legal aid grants has challenged me to consider how I can provide access to justice in my other work. Often, I ask myself whether particular pieces of work are necessary or can be justified as adding value to my clients’ management of conflict. The same practice of valuing their narratives and presenting them to others with as much clarity and authenticity as possible has resulted in beneficial outcomes across a range of contexts.
One reflection is that I could not work in this way as an employed solicitor because civil legal aid work does not conform to the business model of most law firms. I am grateful to be able to practise as a barrister and to be part of a supportive chambers.
Some DR practitoners have described my work as ‘exceptional’ or ‘unique’. That is flattering but also problematic. For lawyers to remain relevant to ordinary people, our expertise should be more accessible. I believe that there should be a pro bono and subsidised component to every lawyer’s work.
We need to embrace the challenges faced by our profession. We cannot wait for government or the Law Society to fix the increasingly unaffordable access to justice issues. Instead, we should do what we can now. Together, we can create a new norm.
