NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
(a) be allowed where it would deprive a defend- ant of a defence it could have relied on in a separate proceeding against one or more class members; nor (b) allow a class member to succeed where they would not have in an individual claim. 3.8 Requirements for Cost Estimate There is no express requirement to provide clients with a cost estimate for potential litigation at the outset. A lawyer has a professional obligation, however, to inform their client of the nature and consequences of significant decisions on the conduct of litigation. This may include an obligation to advise about the likely costs associated with the litigation. If requested, a lawyer must provide a fee estimate, and inform the client promptly if it becomes apparent that the fee estimate is likely to be exceeded. Parties can make a wide range of interlocutory (pre- trial) applications, including procedural applications about case management and discovery, and applica- tions for interim remedies such as injunctions (see 6. Injunctive Relief ). Interlocutory applications may only be brought after any close of pleadings date fixed by the court with leave. Leave is also required to appeal against inter- locutory decisions. 4. Pre-Trial Proceedings 4.1 Interim Applications/Motions The New Rules provide that only certain dispositive applications will be dealt with at an early stage of a proceeding; non-dispositive applications will generally be determined at a later stage (see 4.7 Application/ Motion Timeframe ). 4.2 Early Judgment Applications Parties can apply for early judgment on some or all issues in dispute, or to strike out the other party’s case, before trial by applying for: • summary judgment; • strike-out; or • dismissal for want of prosecution.
A party must apply for summary judgment, which may be granted the court is satisfied that: • a defendant has no defence to claim or any part of it; or • none of the plaintiff’s claims can succeed. The court may also give summary judgment on liabil- ity, and direct a trial about quantum. Summary judgment is unlikely to succeed where a case turns on disputed facts. Summary judgment applications must be made at the time a statement of claim or a statement of defence is served, or at a later stage but only with leave of the court. The court may strike out all or any part of a pleading (which sets out a parties’ claim or defence) if it: • does not disclose any reasonably arguable claims (ie, the claim must be clearly untenable); • is likely to cause prejudice or delay; • is frivolous or vexations; or • is otherwise an abuse of the court’s process. Strike-out applications are determined on the pleaded facts, without reference to evidence. Dismissal for want of prosecution is available where a party is guilty of inordinate and inexcusable delay that has seriously prejudiced the other party. 4.3 Dispositive Motions In addition to the early judgment applications described in 4.2 Early Judgment Applications (sum- mary judgment, strike-out and dismissal for want of prosecution), two other dispositive applications that are commonly made before trial are: • protest to jurisdiction (where a defendant objects to a court’s jurisdiction to hear and determine the proceeding); and • judgment on admission (which enables a party to apply to the court for judgment on any facts admit- ted by the other party). This process is often used by regulators in enforcement processes where the parties have agreed that certain facts will be admit- ted, to enable the court to issue judgment on the
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