Chief judge troubled by trend

Fears high costs deter people from civil, Appeals Courts

Terry Roberts editor@cbncompass.ca
Published on February 19, 2010

The top judge in this province say he's concerned about the number of people coming to court without a lawyer.

He also suspects legitimate cases are being dropped or settled at the civil and Appeals Court level because it's just too costly - and risky - to proceed to trial.

The top judge in this province say he's concerned about the number of people coming to court without a lawyer.

He also suspects legitimate cases are being dropped or settled at the civil and Appeals Court level because it's just too costly - and risky - to proceed to trial.

Derek Green, chief justice of the Newfoundland and Labrador Supreme Court (Court of Appeal), expressed his concerns during a speech Thursday to the Rotary Club of St. John's.

In a perfect world, he said, every person would be entitled to have any legitimate claim vindicated - no matter how small - and would not be deterred from doing so by crippling costs. While he acknowledges that a perfect system is impossible, he wonders if a whole group of people is being priced out of the system, and whether the courts are operating below a minimally acceptable level.

"I'm not saying we're at that point yet, but we all ought to be concerned about it," he said.

Green was appointed chief justice last March, taking over from Clyde K. Wells, former premier of the province.

In his 40-minute speech to the Rotarians, Green talked about the evolution of the courts in this province and the role of a judge.

At one point he quipped he wouldn't be turning off his cellphone, since his daughter was in labour and he was waiting for a call.

But it was his blunt assessment of the court system which caught everybody's attention.

Green has examined the nature of the cases being filed in the Court of Appeal, and said most appellants are corporations, financial institutions, unions, government and agencies.

In cases where individuals were seeking appeals, Green said, roughly half of them were not represented by a lawyer.

Most of the remainder were family-related matters, involved contingency claims, or had an insurance company in the background.

Green said measures are being implemented to expedite court matters and reduce costs, but there's only so far the courts can go.

He wants a dialogue between the courts, the bar association and the provincial government to discuss his concerns.

"We need to look at this in a holistic way to decide what, if anything, we can do to reduce the cost of litigation, because it is very important that people, if they have a legitimate claim, they should be able to get into court. And it's wrong that they should be deterred simply by the cost associated with it," he said.

By the time a case reaches the Court of Appeal, the issues are often refined and technical, and a person without a lawyer can run into problems.

But lawyers are not cheap, and the tab can run into the thousands before the matter even gets into court.

For small claims, legal fees can often exceed the claim.

And litigants also run the risk of having to pay the costs of the other side if they lose, which is another deterrent, Green said.

In the 1990s, Green said it was rare to see someone come into the Court of Appeal without a lawyer. Things have certainly changed.

"I have to say, I was taken aback on one of my first appearances on an applications day in the Court of Appeal to note that 50 per cent of all the cases called had at least one party unrepresented by counsel," he said.

"This is a very concerning trend. It begs the question, are the civil trial and appellate courts only available to individuals who are wealthy, or who qualify for legal aid? Or are there other factors at play?"

troberts@thetelegram.com