NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
reached, the parties may be invited to make brief writ- ten submissions, for the court to determine on the papers. Costs decisions may be appealed. The appellant must show an error of law or that the decision was clearly wrong. 11.2 Factors Considered When Awarding Costs Costs are at the discretion of the court, which will apply general principles to the determination of costs, including that: • the party who fails should pay costs to the party who succeeds; • costs should be assessed by the methodology described in 11.1 Responsibility for Paying the Costs of Litigation ; • an award of costs should not exceed the costs actually incurred by the party; and • costs determinations should be predictable and expeditious. The court may reduce or award no costs if: • the losing party brought or defended the proceed- ing in the public interest (for example, knowing the outcome of the proceeding would set an important precedent); • the successful party was only partially successful, and was unsuccessful on points that increased the time and cost of the proceeding; or • the successful party otherwise increased the time and cost of the proceeding by its conduct – for example, by failing to comply with court rules, or failing to accept a reasonable settlement offer. The court may increase costs, up to all of the costs reasonably incurred by the successful party, if (for example): • the nature of the proceeding or step in it is such that the time required substantially exceeded the time allocated under the costs methodology; • the party opposing costs contributed unnecessarily to the time and cost of the proceeding or a step in it; or
• a contract between the parties provides for increased costs. 11.3 Interest Awarded on Costs Interest may be awarded on costs awards. It is calcu- lated using the online calculator (see 9.3 Pre-Judg- ment and Post-Judgment Interest ), running from the date costs were awarded. 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country ADR is widely recognised and actively encouraged as a means of resolving disputes that is often faster and cheaper than litigation, and may also ensure confi- dentiality. For example, mediation is a cornerstone of employment dispute resolution, with around 70% of employment disputes being resolved through media- tion. Adjudication for construction contract disputes is enshrined in statute. 12.2 ADR Within the Legal System Before a first case management conference, parties are required to consider whether ADR is suitable to facilitate settlement prior to trial. A judge may also convene a judicial settlement conference for the pur- pose of assisting the parties in negotiating a settle- ment. Under the New Rules, the High Court will consider at a judicial issues conference whether any steps should be taken to settle the dispute by means of ADR and, if not: • why that is the case; • whether there are any steps that can be taken to maximise the chances that the dispute can be resolved through ADR or otherwise; and • whether there are any steps that should be taken to minimise the matters in dispute through ADR or otherwise. 12.3 ADR Institutions A number of private institutions offer ADR, including the Arbitrators’ and Mediators’ Institute of New Zea- land Inc (AMINZ) and the New Zealand Dispute Reso-
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