NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
1.4 Legal Representation in Court Rights of audience are typically restricted to lawyers (that is, barristers and/or solicitors holding a current practising certificate issued by the New Zealand Law Society), and to litigants in person. Non-lawyer advocates are common in some areas of the law, including employment and accident compen- sation. Litigants in person may apply to be assisted by a “McKenzie friend”, a support person who may sit beside the unrepresented party to civil litigation to provide support, take notes, make suggestions and give advice. They do not typically have appearance rights. Foreign-qualified lawyers who do not hold a current practising certificate can provide legal services but cannot undertake any “reserved areas” of work for lawyers. Reserved areas typically relate to giving advice on litigation matters and appearing in court or a tribunal. Third-party litigation funding is permitted but not spe- cifically regulated in New Zealand. It is instead regu- lated by: • general case management mechanisms (eg, stay and strike-out powers, and the power to order security for costs); • case law principles; • general statutes that may apply to litigation funding (eg, consumer protection legislation); and • the torts of maintenance and champerty (the New Zealand Law Commission, New Zealand’s inde- pendent law reform body, has recommended the abolition of these torts and specific regulation of third-party litigation funding). 2.2 Third-Party Funding: Lawsuits Third-party funding is available in respect of any type of civil proceeding, provided the arrangement does not constitute an impermissible assignment of a cause 2. Litigation Funding 2.1 Third-Party Litigation Funding
of action nor otherwise amount to an abuse of pro- cess. Legal aid (a government-funded scheme to provide legal services to people who cannot otherwise afford it) is available for some lawsuits, including (in rare cir- cumstances) representative actions. 2.3 Third-Party Funding for Plaintiff and Defendant Third-party litigation funding is available for both plaintiffs and defendants. 2.4 Minimum and Maximum Amounts of Third-Party Funding There are no formal limits on the amount a third-party funder will fund. 2.5 Types of Costs Considered Under Third- Party Funding Third-party funders may fund all costs associated with bringing or defending a claim. This can include: • legal fees and disbursements (including expert fees); • court costs; • security for costs; • any monies payable under any adverse costs orders (if the funded party is unsuccessful); and • claim administration costs. 2.6 Contingency Fees Contingency fees – where legal fees are calculated as a proportion of any sum recovered – are prohibited. Conditional fee arrangements, under which a lawyer agrees that some or all of their fees and expenses are payable only if the matter succeeds, are permitted. A conditional fee arrangement may include a premi- um but only if it is not calculated as a proportion of the amount recovered. Conditional fees may not be charged in criminal, immigration or family law matters. 2.7 Time Limit for Obtaining Third-Party Funding There are no formal time limits by which a party to litigation should obtain third-party funding. In prac- tice, however, third-party funding is typically obtained
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