Access to Justice Five Years On

Frances Joychild KC was the inaugural winner of the LexisNexis New Zealand Bar Association Access to Justice Award in 2022. Here she writes on what is happening in the Access to Justice field today in civil law and makes two substantial recommendations for change. 

There has been much activity in the New Zealand Bar Association, Law Association of New Zealand, Ministry of Justice and High Court Rules Committee in the last five years to try to improve access to justice for New Zealanders. It is commonly understood that over half of New Zealanders cannot access justice in the country they live in. Efforts to change the situation over the past five years are well documented and are described briefly here.¹

High Court Rules changes

The High Court (Improved Access to Civil Justice) Amendment Rules 2025 took effect on 1 January 2026. These have an objective of a just, speedy, and inexpensive resolution scaled to what the dispute is actually worth. Parties are required to file factual witness statements and key documents at the time of filing pleadings. There is an early mandatory judicial conference to isolate core issues and cut out peripheral arguments. It is too early to assess how this might make litigation less expensive and more efficient and speedier, but it is a worthy attempt at improvement.

Te Ara Ture pro bono clearing house initiative

There is a national Te Ara Ture pro bono clearinghouse operating out of Community Law whose purpose is to improve the pro bono culture in New Zealand. Six firms founded the effort, and there are now over 100 registered legal practices and individual lawyers in the scheme. Participating firms commit to a target of at least 25 pro bono hours per full-time lawyer per year. 17,589 pro bono hours were given last year, and 86.7 % of these were given to community organisations and charities.

They have been helped with corporate governance, tax structuring and property matters, for example. Individuals on low incomes can get help with matters such as employment, MSD debts, immigration matters, among other matters. Some of the 100 practices don’t commit to the 25 hours but register to review the digital portal and log on and accept or decline individual cases.

Civil legal aid changes

There have been several activities in the area of legal aid. In 2023, the government removed the $50 user charge. Legal aid remains a debt that can be waived for persons on a very low income, such as a benefit, but otherwise must be repaid. It is now an interest-free loan rather than one that accrues interest; eligibility thresholds have gone up 15%.  There was a one-off 12% increase in lawyers’ fees in July 2022.

Today, civil legal aid rates for junior, intermediate and senior counsel respectively stand at $103, $130 and $150 per hour for tribunal matters; $108, $134 and $150 per hour for District Court matters and $120, $150 and $178 for High Court, Court of Appeal and Supreme Court matters.²

In 2025, 513 lawyers nationwide were approved to provide civil legal aid( excluding family). However, only 175 lawyers, or 19%, were active providers.

An estimated 493,000 New Zealanders are now eligible for civil legal aid.³ However, in 2025 the government approved only 2,553 civil legal aid grants. This compared to 64,587 approved criminal legal aid grants.⁴

These figures say it all: civil legal aid is essentially not available  for even eligible people with civil law problems. The reason, from the data and from my experience, is that there are almost no lawyers undertaking civil legal aid.

My experience of the massive civil lawyer gap.

I am well aware of this gap as I am a registered civil legal aid provider and am contacted weekly and sometimes daily by members of the public seeking a civil legal aid lawyer. This was the first sentence of the email I received today: I write in absolute desperation for someone like yourself to hopefully consider taking my case. They are typical words and in a typical tone.

These days I take on average three cases a year and turn down around 95% of inquirers. I used to do more. I understand how I work is typical of many civil legal aid providers. Besides capacity issues, it is simply not affordable to take on a large civil legal aid practice. Besides the extremely low rates, the paperwork is a major hurdle, amendments to grant particularly so. Other lawyers I know would rather take a case pro bono, sometimes on a contingency basis with an agreement that if there is money recouped, they get a percentage. At other times they work pro bono but with an agreement that any costs awarded go to them. I do this also at times.⁵

People and small businesses needing lawyers do the rounds of every civil legal aid lawyer in their area and mostly no-one has capacity or availability. They often come back to me in a couple of months after they have first inquired about my availability. They might get friends, family members to ring and beg me to take the case.

The types of work they need lawyers to do for them is as varied as the practice of law : to enforce debts, issue or defend bankruptcy proceedings, deal with contractual matters that have gone off the rails, defend themselves in disputes with IRD, defend themselves in summary judgments, defend themselves in all sorts of civil litigation at all levels, challenge insurance claim decisions, take proceedings in all sorts of civil jurisdictions; challenge ACC when it has declined their claim, challenge MSD’s decisions such as debt calculations; that they are in a marriage; challenge an employment dismissal ... The list is endless.⁶

People seeking civil legal aid are typically in high stress, high anxiety and fear when they contact me. And for most all I can leave them with is further despair. Those negative emotions affect their whole household and everyone they interact with. Long term injustices that can’t be resolved impact every aspect of their life. And that impacts society and the country. When justice cannot be resolved through the courts. we lose the ‘free and democratic society’ that the Bill of Rights is predicated on. The fall out takes us to a time prior to the Magna Carta.

Legal aid review

Overall legal aid costs have risen from $192m to $304m over five years. It seems the criminal arena is where this has occurred. A programme has been established in the Ministry of Justice called the “Accessible and Affordable Justice Programme”. My initial read of the consultation leaves me thinking all civil law options are tinkering. The government currently has a budget blowout and is most unlikely to provide more funding to encourage more lawyers to undertake civil legal aid.

The growth in lay litigants

Lay litigants are the result of a non-functioning civil law system, particularly non-functioning civil legal aid. In 2015 self-represented litigants made up 51.8% of litigants in the District Court. As of 2024, that figure was 74.2%. In the High Court they are estimated to constitute 10 to 20% of litigants, with notably higher concentrations in the appellate lists. Approximately 20 to 25% of litigants in the Court of Appeal are self-represented and 40% in leave to appeal to the Supreme Court applications. A small proportion are granted leave to argue their case substantively.

Lay litigants are recognised as placing significant pressure on the civil litigation system, contributing to court delays and increasing costs for opposing parties. They are always at a disadvantage because of their lack of knowledge of the law. Additional pressure goes onto the judge trying to ensure fairness. From the outcomes I have seen, I do not believe justice has always been served in such cases. More than once I have successfully appealed a decision or otherwise helped a lay litigant who failed in their initial action. The vast majority of lay litigants do not know how to identify the key legal issues, and they do not know how to adduce evidence to prove or disprove the issues. They cannot identify fact from law. Facts that are important to them are often legally irrelevant. They are not the solution to the massive gap in access to civil law justice. Neither is AI, which in the hands of lay litigants is another major problem for courts to deal with.

Solutions

Enabling access to justice requires action on multiple fronts. Injecting more funding into civil legal aid is the obvious solution that could dramatically improve the situation more than anything else, overnight. However, that is in the hands of politicians. Below I discuss two solutions that could significantly improve people’s access to justice in the civil arena. There are other methods I think are also strong contenders for creating solutions. Among others, one is to reduce court fees for individuals or increase hardship level waivers. The other is to provide a specialist social security funded law centre. These are for discussion on another day.

1 - Enable every qualified lawyer to be able to take civil legal aid cases

At the moment a lawyer has to apply to become a civil legal aid provider, despite having a practising certificate. The extraordinarily burdensome process is well described by Alexandra Low⁷ in her article in Law News: Nightmare battle with a process fraught with difficulty. I recall it took me three full-time days and two part-time days just to complete the form, when I did it as a senior lawyer in 2011. At that time, I had taken several successful cases in the appellate jurisdiction but despite my protest, I had to prove my capability. Now KCs are excused but other senior lawyers still have to go through the process.⁸

But it wasn’t always like this. When I joined the independent bar in 1997 any lawyer (barrister or solicitor) could provide legal aid. A person seeking a lawyer would ring or write and explain their situation. If it was in the lawyer’s field of expertise, drew the lawyer’s interest, compassion or conscience, then they would accept the case and file an application on behalf of the client for legal aid. It could be slipped into among their caseload. It did require more paperwork; it was not well paid, but it was viewed as fulfilling a social duty and most lawyers I knew were happy to do the occasional legal aid case on that basis.

 All that changed in 2011. The solutions devised in government after the Bazley Report have in my view had a catastrophic impact upon the provision of civil justice. The Legal Services Act and regulations of 2011 became the greatest disincentive possible to undertake civil legal aid.

Most of my colleagues, intermediate and senior, highly capable and experienced, simply walked away from providing civil legal aid in 2011. Law practices walked away. The time and hurdles now required to obtain ‘accreditation’ were seen for what they were, both unreasonable and unpalatable. As time went on without any adjustment to rates, civil legal aid has also become increasingly unaffordable to those who do it.

Now there is every incentive for lawyers to opt out of legal aid. All they need to say now to an inquiring potential client is that they are not accredited to do legal aid. ‘Our firm doesn’t do legal aid’. End of story.

In my opinion, there is no justification for the ‘accredited civil legal aid provider’ hurdle. Lawyers have all studied for five years, completed professional legal studies and must complete a fit and proper person declaration annually. They must complete 10 continuing professional development courses a year. There is a disciplinary process we are all subject to. Complaints can be made by clients about any aspect of lawyer’s competence or ethics. It is a lawyer’s responsibility to ensure the case they have taken is one where they are qualified. The legal profession is heavily regulated.

There remains a legitimate role for oversight of quality and public expenditure. Legal aid administrators should continue to investigate complaints about provider performance, undertake file audits, ensure less experienced lawyers are appropriately supervised, and monitor spending and litigation decision-making. But these functions can be achieved through targeted, risk-based oversight rather than the current level of administrative control over a currently adequately regulated profession.

2 - Enable and fund community law centres to take on small civil litigation cases

Again, this is a return to the past. The first Community Law Centre was established by the Auckland District Law Society in the late 1970’s as a pilot scheme in recognition of a major unmet legal need in the community.⁹

It was funded by interest on lawyers’ trust accounts. It was managed by a head solicitor who had practical litigation experience and supervised the work of multiple enthusiastic junior employed lawyers. The centres were hives of legal activity for poorer citizens.

They also became great training grounds for young lawyers, giving them wide mediation and litigation hands-on experience. Many went on to have distinguished careers, including as judges. One former High Court judge, Ailsa Duffy, who worked in the Grey Lynn centre in the early 1980’s, explained to me the work she did in the civil arena: a wide range of civil litigation such as all aspects of tenancy disputes, consumer protection, damage to property, breach of contract, constructive trusts, challenging refusals of insurers to provide cover, tortious claims, real estate complaints, constructive trusts, undue influence against finance companies, judicial review, social welfare, immigration, employment disputes.

In 2011 the government, which had by then taken over the operation of the centres, removed funding from the law centres to undertake litigation. That was to go to private providers instead.¹⁰ But as discussed above there are almost no private providers doing this work. The funding not being used for civil legal aid could be transferred back so all these small people and businesses, formerly so well served by community law centres, could have some representation, somewhere to turn to.

- Frances Joychild KC

REFERENCES

1. Statistics and data cited in this article have been collected with the assistance of AI from sources such the Ministry of Justice, and the New Zealand Law Society Te Kāhui Ture o Aotearoa Legal Aid Review 2025: Submission of the New Zealand Law Society Te Kāhui Ture o Aotearoa (1 August 2025) . The original source documents themselves have not always been reviewed in their entirety.
   
   
2. After rental, registration fees, professional indemnity insurance, income protection insurance, legal library facilities, the “profit margins” for civil legal aid can go into the red.
   
   
3. The Legal Aid Regulatory Impact Statement 2022 p14 n18 provides a rough estimate of approximately 400,000 eligible people. The Bill then increased the eligibility threshold by 93,000. Regulatory Impact Statement: Improving access to legal assistance for low-income New Zealanders - 10 June 2022 - Regulatory Impact Statement - Ministry of Justice
   
   
4. Ministry of Justice, Justice Statistics Data Tables 2016 – 2025, https://www.justice.govt.nz/assets/Documents/Publications/16NKQZO_Legal-aid_dec2025_v1.0.xlsx. Accessed August 2026.
   
   
5. However, working under legal aid has advantages for clients such as protection from adverse costs awards. Lawyers have to be careful to ensure the client understands this protection is lost under contingency fee arrangements.
   
   
6. An example of the matters people have wanted help from me in the last two months include: to stop the republication of the name of their charitable organisation in a damning media article; to take a claim for historic abuse in a private boys school; four wanted to challenge ACC decisions declining cover at various levels of the process; two wanted me to take over civil proceedings they had started themselves as lay litigants in contractual/commercial matters; one wanted to appeal against a Harmful Digital Communications Order; one had an issue in relation to a conveyancing transaction; one wanted to challenge a health professional destroying records; one wanted help judicially reviewing MSD; several sought help with MSD actions and decisions. 
   
   
7. https://lawnews.nz/legal-profession/becoming-a-civil-legal-aid-provider-one-senior-litigators-nightmare-battle-with-a-process-fraught-with-difficulty/ 5 July 2026
   
   
8. Reforms were announced by the Legal Services Commissioner's in August 2026 which acknowledge that the current system creates unnecessary barriers for practitioners. Possibly the introduction of simplified approval pathways for family and civil legal aid providers, together with new experience waiver provisions recognising equivalent experience gained in other jurisdictions and practice areas, aimed at making it easier for lawyers to enter (or return to) the legal aid scheme, will increase the number of lawyers taking legal aid cases, but I doubt it will be significant. More fundamental change is needed if legal aid is to attract and retain sufficient numbers of experienced practitioners. The current heavy handed ‘control’ has to stop.
   
   
9. Initially it was funded by law firm donations, ADLS, Council and government employment schemes paid the lawyers salaries.  In the 1980’s registered trusts were established to run community law offices. There were regular funding crises and so it became that the centres were funded through interest earned on lawyers’ trust account deposits. That ensured continuity of funding. 
   
   
10. I understand centres still have the ability to take on a rare case, but standard practice is for them to decline requests to act in cases as lawyers before tribunals and courts.