Product Liability 2009 - Arnold & Porter LLP

Simpson Grierson New Zealand
Identity of interest is required. Where the class proposed to be
represented includes diverse interests, and particularly where
members may have available different defences, the procedure is
not available. Members of the class represented are bound by any
judgment given in the representative action, even though the
members may not themselves be individually named as parties.
Essentially, conduct of the representative proceeding rests with the
named representative party.
The High Court may also appoint a variety of other people to act as
representatives of a group.
Opt out orders are not well-recognised. In Houghton v Saunders
(2008), it was common ground that opt out orders had not
previously been made in other representative proceedings in New
Zealand, and the High Court judge ruled that an opt in process
should be used in that case.
Although class actions and representative action procedures have
not historically been widely used in product liability claims in New
Zealand, the Rules Committee of the High Court is seeking to
introduce new class action rules which in all likelihood will
increase the availability and use of class action procedures for
product liability claims.
4.4 Can claims be brought by a representative body on behalf
of a number of claimants e.g. by a consumer association?
Under currently available processes the High Court may allow a
representative body to bring a claim on behalf of a class of persons.
The objective is to avoid duplication. It is unlikely that
representation would be ordered in respect of a class of persons
whose interests contained substantial internal conflicts. This
approach is not common in product liability claims in New Zealand,
but this may well change if and when new class action rules are
introduced.
4.5 How long does it normally take to get to trial?
The time from filing to the commencement of a trial will vary a
great deal between cases. A relatively straight-forward civil claim
requiring a trial will ordinarily take between nine and 24 months
from filing until trial.
4.6 Can the court try preliminary issues, the result of which
determine whether the remainder of the trial should
proceed? If it can, do such issues relate only to matters of
law or can they relate to issues of fact as well, and if there
is trial by jury, by whom are preliminary issues decided?
The High Court has the power to hear and determine preliminary
issues which may determine whether the remainder of the trial
proceeds. Preliminary questions can cover matters of fact, matters
of law, or matters of mixed fact and law. Preliminary questions are,
at least in practice, determined by a judge without a jury. If the
preliminary question is a question of law, the High Court may order
that the question of law be removed into the Court of Appeal, but
this jurisdiction is used very sparingly.
Applications for summary judgment can be made in civil cases in
the District Court and the High Court.
4.7 What appeal options are available?
An appeal against a District Court decision at trial will ordinarily lie
to the High Court. In exceptional cases the Court of Appeal will
provide a second tier of appeal from decisions originally made in
ICLG TO: PRODUCT LIABILITY 2009
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the District Court. Some appeals from District Court criminal
decisions go direct to the Court of Appeal.
Appeals from High Court decisions at trial can be brought in the
Court of Appeal. In some cases a second tier of appeal is available
by way of appeal to the Supreme Court (subject to leave being
granted).
4.8 Does the court appoint experts to assist it in considering
technical issues and, if not, may the parties present expert
evidence? Are there any restrictions on the nature or
extent of that evidence?
Technical issues are ordinarily covered by expert evidence
presented by the parties. The court is also able to appoint experts,
but this procedure is not widely used.
The High Court Rules contain a code of conduct for expert
witnesses. Expert witnesses are for example made subject to an
overriding duty to assist the court impartially in relevant matters
within the witness’ area of expertise. Expert witnesses are not
permitted to act as an advocate for the party who engages the
witness.
4.9 Are factual or expert witnesses required to present
themselves for pre-trial deposition and are witness
statements/expert reports exchanged prior to trial?
In civil proceedings, factual or expert witnesses are not usually
required to present themselves for pre-trial deposition, but witness
statements and expert reports are normally exchanged prior to trial.
In criminal proceedings to be heard before a judge sitting with a
jury, factual and expert witnesses to be called by the prosecution
may be required to present themselves for pre-trial deposition
and/or to provide a statement or reports to the defence prior to trial.
4.10 What obligations to disclose documentary evidence arise
either before court proceedings are commenced or as part
of the pre-trial procedures?
In civil proceedings the District Court Rules and the High Court
Rules provide for parties to obtain access to detailed information
about documents (including tape, video and electronic records)
relevant to the matters at issue. Parties to civil proceedings and
non-parties may be required to list on oath the relevant documents
which they may have held at any time and to produce those
documents where possible. In preparing a list of documents, the
party preparing the list must identify which documents it has in its
possession, custody or power and which documents it objects to
disclosing. The grounds upon which disclosure may be resisted are
limited. The main types of privilege which allow disclosure to be
resisted are: privilege against self-incrimination; non-litigious legal
professional privilege; litigation privilege; and professional/
indemnity insurers’ privilege. In some circumstances disclosure of
confidential documents may not be required or may be subject to
conditions limiting access.
In criminal proceedings the prosecution is ordinarily required to
provide copies of its non-privileged documents to the defence.
4.11 Are alternative methods of dispute resolution available e.g.
mediation, arbitration?
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The High Court Rules explicitly provide for judicial settlement
conferences (where a judge can assist the parties’ negotiations),
arbitration, mediation, and other forms of alternative dispute
New Zealand