In September, Chief Justice Dame Helen Winkelmann released her annual report in which she warned that New Zealand’s justice system was "under considerable stress".
Delays are mounting, fewer lawyers are taking on civil or legal-aid work and ordinary people are being priced out of their own courts.
The report called for more judges and more taxpayer funding.
Yet the deeper issue is one few inside the system name: the cost of legal services and the culture that sustains it.
Civil justice covers the everyday disputes that shape ordinary life — contracts, property, employment, estates and small-business debts.
People can represent themselves in the Disputes Tribunal for sums up to $30,000, but for larger cases they have little choice except to hire an expensive lawyer.
What should be a public service has become a private luxury. The right to be heard depends on the ability to pay.
Lawyers argue that their fees reflect skill and value. But the Law Society’s own Conduct and Client Care Rules allow charges for "complexity", "specialised knowledge", "responsibility" and even the "importance to the client".
They permit surcharges for urgency or for "the circumstances in which the services were provided".
Each clause provides scope for higher fees.
No other occupation enjoys this discretion. A builder cannot double a quote because a client is anxious about the roof. An engineer cannot add a premium because a bridge matters to its owner.
In most trades, competition keeps prices in check. Law remains shielded by professional privilege and self-regulation.
Legal-aid rates, published by the Ministry of Justice, are roughly one-half or one-third of the private fees many firms advertise.
The same lawyer may charge one rate when acting for the Crown and another when acting for an individual. This exposes the fiction of market pricing.
If work can be done profitably at legal-aid rates, the public prices are inflated. The gap has become the measure of exclusion.
Delay compounds the problem. Every adjournment, memo and letter adds another unit to the timesheet.
The billable-hour model rewards time spent rather than results achieved. A slow case becomes a profitable one.
The longer a matter drags on, the more the costs grow, for clients, not for lawyers. Judges rarely highlight this because most have spent careers within the same professional culture.
Their reports call for "more resources", yet more resourcing simply feeds a structure that remains unchanged. The public pays twice: first through taxes, then through legal fees. For many small businesses and families, even straightforward cases can become ruinous.
A contested estate can vanish in costs. A commercial dispute can consume more than the amount at stake. Many people abandon claims altogether because pursuing them makes no economic sense.
Access to justice becomes theoretical rather than real.
The Law Society’s monopoly over regulation limits the chance of internal reform. Complaints about cost are handled within the same body that sets the rules. Committees dominated by practitioners decide what is reasonable.
This concentration of authority may serve members well, but it leaves the public without an effective voice.
Other professions have adapted to transparency and competition. Accountants contend with automated software, doctors with telehealth and architects with digital design tools.
The legal sector remains largely insulated from such change. It insists only lawyers can perform legal work, while ensuring few can afford them.
What would genuine reform look like? Fixed fees for standard matters would make costs predictable. Transparent pricing schedules should be mandatory.
Lawyers’ terms of engagement should set clear limits on charges, not open-ended discretion.
Oversight of fees should be independent of the Law Society and publish regular data.
Competition from trained non-lawyer advocates and online services should be encouraged where public protection is not compromised.
New Zealand’s civil-justice system is not failing through neglect alone. It is constrained by cost and by a professional model that has changed little in generations.
The chief justice was right to warn of strain, but until the price of legal work is treated as a core justice issue, our courts will remain open in theory and closed in practice.
— Professor Bruce Curtis is an honorary professor, School of Psychological and Social Sciences, University of Waikato.
