Felicity Monteiro December 12 2017 Amendments to Evidence Act for civil litigators Wilson Harle | Litigation - New Zealand Felicity Monteiro Litigation IntroductionEvidence ActEvidence Amendment ActDefinitionsLegal professional privilegeWithout prejudice privilegePrevious consistent statements rulePrevious decisions as evidenceOngoing reviewIntroductionThe law of evidence in court proceedings in New Zealand is contained in the Evidence Act 2006. The act codified and adapted the common law, which until 2006 had largely governed this matter. In January 2017 the Evidence Amendment Act 2016 came into force. Most of the amendments relate to evidence in criminal proceedings. However, several important amendments are relevant for civil proceedings. The amendments relate to:the definitions relevant to the application of privilege, including 'overseas practitioner' and 'information' (Section 51);legal advice privilege, which has been extended to those requesting legal advice (Section 54);settlement privilege, which has been extended to plea bargaining. Further, a new interests of justice exception has been introduced (Section 57);prior consistent statements, for which the exceptions have been redrawn (Section 35); andthe prohibition on using previous decisions as evidence, which has been extended to tribunal decisions (Section 50).Evidence Act In its 1999 report recommending an Evidence Code, the Law Commission implied that it would be a codification of the law of evidence and replace most of the existing common law and statutory provisions.(1) However, since the enactment of the Evidence Act in 2006, the ongoing relevance of the pre-existing common law has been an unsettled matter with some courts continuing to resort to pre-existing common law in circumstances not anticipated by the act.(2) The act governs evidence in 'all proceedings', which means proceedings in court and does not include statutory tribunals.(3)The act contains a provision requiring its operation to be periodically reviewed.(4) The Law Commission is charged with reporting to the minister of justice on the operation of the provisions every five years, including with regard to whether the provisions should be retained, repealed or amended. The Evidence Amendment Act is the result of the Law Commission's first review of the Evidence Act.(5)Evidence Amendment Act The Evidence Amendment Act is the fourth and most substantial amendment to the Evidence Act since its introduction in 2006.(6) It implements some of the recommendations from the Law Commission's first review of the act's operation.(7) The majority of the amendments were made to provisions exclusively relevant to criminal proceedings. The main amendments of relevance to civil proceedings are summarised below.DefinitionsThere are some important changes to the definitions contained in Section 51 of the act. The definition of 'overseas practitioner' has been amended. Before the enactment of the Evidence Act, the common law protected communications with overseas practitioners on the same basis as legal advice privilege relating to New Zealand practitioners. The Evidence Act originally made an allowance for privilege to attach to communications with overseas practitioners, but defined 'overseas practitioners' as:barristers;solicitors and patent and trademark attorneys in Australia; andthose entitled to undertake the work of a lawyer or patent attorney under the laws of any country listed in an order in council.(8)An order in council was made in 2008, a year after the act came into force, and contained a list of many, but not all, countries. This meant that there remained some jurisdictions for which legal advice privilege did not apply.(9) In its review, the Law Commission recommended that the definition of 'overseas practitioner' be amended to mean "any person who is, under the laws of a country other than New Zealand or Australia, entitled to undertake work that, in New Zealand, is normally undertaken by a lawyer or patent attorney".This amendment removes the need for orders in council specifying certain jurisdictions. Australia is still addressed separately in the definition. The amendment means that any of the privileges which attach to communications with New Zealand legal advisers will also attach to communications with overseas practitioners, regardless of the jurisdiction in which they practise.The definition of 'information' was also amended so that the privilege against self-incrimination – for which the definition is relevant – attaches only to information that is compelled to be given in response to a request for information and not to documents that are already in existence or have already been provided.(10)Legal professional privilegeSection 54 of the Evidence Act provides that a person who obtains professional legal services from a legal adviser has a privilege in respect of any communication between him or her and the legal adviser if the communication was intended to be confidential and made in the course of the obtaining or giving of professional legal services.The Evidence Amendment Act extends the privilege to include those who request legal services, regardless of whether they actually obtain them. This amendment was recommended by the Law Commission in its first review. The change brings the statutory expression of the privilege into line with the common law and the Law Commission's original intention.(11) It is intended to ensure that privilege attaches to initial communications before advice is obtained and includes communications with a lawyer who is unable to act.(12)Without prejudice privilegeSection 57 concerns privilege for settlement discussions. Such communications are inadmissible in proceedings unless an exception applies. The statutory privilege is limited to communications intended to be confidential.(13) Exceptions to the privilege in proceedings are set out in Sub-section 57(3). The Evidence Amendment Act 2016 has extended the privilege to plea bargaining and introduced a new interests of justice exception in Sub-section 57(3)(D) so that evidence can be admitted where the interest in admitting the evidence outweighs the interests in upholding the privilege.Previous consistent statements ruleThe admissibility of previous consistent statements is governed by Section 35. The default position was that a previous witness statement that is consistent with the witness's evidence is inadmissible unless the statutory exception applies to the statement (Sub-section 35(1)). Such a statement was previously admissible only to the extent that it was necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or a claim of recent invention on his or her part (Sub-section 35(2)). Previous consistent statements were also admissible if they were reliable and provided information to the court that a witness was unable to recall (Subsection 35(3)).In its 2013 review, the Law Commission expressed concerns with the operation of Section 35. It recommended reform, which was mostly adopted under the Evidence Amendment Act. The redrafted provision provides that previous consistent statements are generally inadmissible, except where the statement:responds to a challenge that will be or has been made to the witness's veracity or accuracy, based on a previous inconsistent statement or a claim of invention;forms an integral part of the events before the court; orconstitutes the mere fact of a complaint made in a criminal case.The exception relating to a witness who is unable to recall information has been retained, but moved to Section 90, which deals with refreshing memory.Previous decisions as evidenceUnder Section 50, evidence of a judgment or a finding of fact in a civil proceeding is inadmissible in a criminal or another civil proceeding to prove the existence of a fact that was at issue in the proceeding in which the judgment was given. The section was silent on the judgments or findings of fact of tribunals. As a result, the High Court had held that as there was no automatic bar on a court using a tribunal decision to prove in the court proceeding the existence of a fact that was at issue in the litigation in which the tribunal's decision was given, such evidence could be accepted under the usual rules of admissibility.(14)The provision has now been amended, with the insertion of Sub-section 50(1A), which provides that evidence of a decision or a finding of fact by a tribunal is inadmissible in any proceeding to prove the existence of a fact that was at issue in the matter before the tribunal. Tribunal decisions will now be handled in the same way as court decisions in civil proceedings. This amendment was made in accordance with the recommendation in the Law Commission's review.(15)Ongoing reviewThe Law Commission has commenced its second review of the Evidence Act and is expected to report to the minister of justice by February 2019.(16) Some of the terms of reference include matters that will be relevant to civil litigation, although much of the review is focused on criminal proceedings. The conduct of experts,(17) unreliable evidence,(18) the definition of a 'witness', the status of the common law(19) and the termination of privilege(20) are all within the scope of the second review.For further information on this topic please contact Felicity Monteiro at Wilson Harle by telephone (+64 9 915 5700) or email ([email protected]). The Wilson Harle website can be accessed at www.wilsonharle.com.Endnotes(1) Law Commission, Evidence: Reform of the Law (New Zealand Law Commission (NZLC) R55, Wellington, 1999) at 8.(2) New Zealand Law Society (NZLS) Seminar, Evidence Act for Civil Litigators, Andrew Beck, November 2012 and Law Commission, First Review of the Evidence Act 2006 (NZLC R127, 2013) at 2.35-2.67.(3) Section 5(3) and Section 4, Evidence Act 2006.(4) Section 202.(5) Law Commission, First Review of the Evidence Act 2006 (NZLC R127, 2013).(6) There were amendment acts in 2007, 2011 and 2013.(7) Law Commission, First Review of the Evidence Act 2006 (NZLC R127, 2013).(8) Section 51.(9) The Cayman Islands was given as an example in a submission to the Law Commission on its first review.(10) Law Commission, First Review of the Evidence Act 2006 (NZLC R127, 2013), paras 10.148-10.158 and R27.(11) Law Commission, First Review of the Evidence Act 2006 (NZLC R127, 2013), at 10.30.(12) Ibid, 10.30-10.32.(13) Section 57 and Andrew Beck, Evidence Act for Civil Litigators (NZLS seminar, November 2012), p 33.(14) Simpson v Sax 2015 NZHC 1466, 2015 NZAR 1210 at 43.(15) Law Commission, First Review of the Evidence Act 2006 (NZLC R127, 2013), at 9.17, R19.(16) The status of the common law is within the terms of reference for the second review.(17) Section 26.(18) Section 28.(19) Sections 10 and 12.(20) Sections 56 and 57.