The ruling that Mariya Taylor must pay almost $30,000 to her abuser shows just how much our legal system needs to be overhauled. But, asks the director of Otago University’s Legal Issues Centre, what can we do for women like her in the meantime?

The costs decision in Taylor v Roper has invoked strong feelings that an injustice has been committed. Our High Court has ordered a victim to pay her abuser almost $30,000, a decision which Madeleine Holden is not alone in calling “absurd”. The decision is also causing lawyers great unease about the system they work in, even as they explain that it was in line with court rules.

It is no wonder suggestions on how to fix the rules surfaced almost as fast as the news about the decision. And because the facts of the case draw attention to so much that is unsatisfactory about how our society and entire legal system deals with abuse of women, it is no wonder that people feel underwhelmed about suggestions to amend one or two High Court rules.

To my suggestion in an RNZ opinion piece about how we might tweak the cost rules, Holden responds that it is “unambitious” and we instead need “radical collective action and systemic transformation”. Yes, full transformative social change would be awesome, sign me up.

But in the meantime, what do we, as a society, do for a woman like Mariya Taylor and all others who have suffered an injustice that they want the civil courts to recognise and respond to? Because until the bright dawn of revolution comes and fixes everything, nothing will counter the chilling effect of decisions like this one. It’s still going to cost women over $100,000 to get into the High Court, and if they lose they will still have to pay their opponents. And it seems a bit harsh to tell such sufferers of injustice to just taihoa while we eradicate all of society’s centuries-old inequalities and prejudices. In the meantime, some relatively simple changes might keep some paths of justice open and soften the fall should they stumble in their pursuit of justice.

Here at the University of Otago Legal Issues Centre, we think the civil justice system needs big changes. The cost, and other barriers to accessing justice, are problems we need to address – yes, “reform” – now, without waiting for the revolution. I want to share some ideas about what we need to be doing, but before I do, let’s pause to consider how Mariya Taylor’s case fits into the civil system.

Her case was heard at the top of that system in the High Court, our highest first instance court and the big behemoth of litigation. It has fantastic judges and will hear your case in careful detail. You can’t go to that court unless the financial stakes are high (the reasoning being it will be expensive to be there so there needs to be a lot on the line). Ms Taylor’s case was in the High Court because she was claiming over $600,000 in various forms of damages.

It was a legally difficult case because standing in the way of success was legislation – both the Accident Compensation Act (the ACC scheme) and limitations provisions. These laws meant that her claim was barred unless her lawyers could find a way around them. Ms Taylor was successful in the first part of her case. The Judge found Ms Taylor was a victim of sexual abuse and harassment who has a mental injury from that abuse. She could not win the case though because the time ran out for making a claim in 1994. Her lawyers argued that this time limit did not apply because she had a mental injury. The Judge agreed she had a mental injury but found it had not prevented her from making a claim, so the time limit still applied. On top of that, compensation was available under ACC, so she was barred from claiming at least some of that $600,000. Therefore, she lost the civil High Court case.

The costs rules create a presumption that the loser of a High Court case pays, but leaves the Judge discretion about exactly how those rules are applied. The Judge was faced with these facts: Ms Taylor was the victim of Mr Roper’s abuse, Ms Taylor had a mental injury as a result, there are rules that said Ms Taylor should pay Mr Roper, the Judge had some (but not unlimited) discretion about whether or not to order that payment. It is what lawyers call a “hard case” – an unusual, extreme case – and as Holden has said previously, they are risky cases to use as the backbone of reform. There’s an old law school adage that “hard cases make bad law”, and in a country with a small population like New Zealand, perceived injustices tend to cause disproportionate shifts in legislation. 

While hard cases aren’t the best starting point for large scale reform, Ms Taylor’s case highlights some big systemic problems that are present in many unsatisfactory cases. Why did this case end up in a full High Court trial? Why on earth should it cost each party over $100,000 to go through that trial? Isn’t there a better way? So, here are some paths to a better system.

We need to shake up the legal advice and representation market. People need advice and help from other people, they always will, even in the age of Google and apps. In our society of complicated rules and infinite shades of grey, when something goes wrong, you need someone to talk to. We are doing lots of work on how to make legal advice and representation more affordable. We are also working on how to supplement that more affordable assistance with better information so people can make better choices about what to do when they find themselves in a tricky situation. This information might also allow them to do more for themselves, so they don’t have to spend so much on advice. We’ve been experimenting with more user-friendly information services, like this series of animated videos. And we are starting a legal laboratory, which uses legal design principles, to test how well legal information innovations work.  

We need to think imaginatively about how our courts might look in the future. With our project “Aotearoa’s Future Courts” we’ve done historical work to look at how we got to where we are today (what do we want to keep, what needs changing). We are bringing in Māori post-graduate students to look at Māori perspectives on where we are now and how the civil justice system needs to change from a Māori perspective. We are experimenting with how an online court might make civil justice more accessible and affordable.

We need to think about how to deliver justice faster and cheaper. But the catch with faster, cheaper justice is that it can sometimes mean less accurate outcomes. How do we balance that up? We’ve looked at how this balance is struck in the High Court and now we are looking at the Tenancy Tribunal. We are examining what the ideal system might look like using these examples.

Our work concentrates on the civil system but there is a lot going on in the criminal system as well, work that has either already spurred transformative change or has the potential to do so. Holden says we should abandon the idea that “we’re a few more Law Commission reports away from fixing the legal system and imagining fundamentally different alternatives”, but the Law Commission has been the source of imaginative change for sexual offences. Its report on sexual offences put forward a carefully researched and radical proposal to introduce alternative dispute resolution to sexual offences: “The process would provide for a victim to complete a programme that addresses the harm caused by the sexual violence and that facilitates discussion with and reparation by the perpetrator, if appropriate”. The Government responded saying it would work through the proposal.

Another of the Law Commission’s recommendations, a Pilot Sexual Violence Court, was immediately taken up and has been running for two years now. A report on that Pilot is due this year. There are many other people turning their minds to the problems, community organisations, researchers, the leadership of the courts. In the research space, an example is the AUT Centre for Non-Adversarial Justice promoting alternatives to the adversarial system. Within the courts themselves there are creative examples of doing things new ways, including Te Whare Whakapiki Wairua (the Alcohol and Other Drugs Court), Te Kooti o Timatanga Hou (the Court of New Beginnings), and the use of restorative justice and Rangatahi and Pasifika Courts.

Yes we have a long way to go, yes we can do better, so let’s keep working on transformative change, let’s keep our eyes on the prize. But in the meantime, let’s also keep making those incremental improvements that recognise and respond to those who suffer injustice.