On 22 March 2024, Te Aka Matua o Te Ture| the Law Commission published its third and final statutory review of the Evidence Act 2006.

This article discusses the Commission’s key recommendations to clarify the rules of legal privilege and reform evidence procedure in civil proceedings.^[1]

Privilege

The Commission identifies a raft of issues with the current privilege provisions in the Act. It recommends reform to ensure the Act’s privilege provisions better reflect the common law position prior to the enactment of the Act, which was intended to codify the common law rules on privilege.

Extending the application of legal advice privilege (section 54) to documents prepared but not communicated between clients and legal advisers

Legal advice privilege (also known as solicitor-client privilege) protects communications with legal advisers provided the communication was intended to be confidential and was made in the course of, and for the purpose of, obtaining (or providing) professional legal services.

At common law, legal advice privilege extended to material brought into existence for that purpose, even if the material was not in fact communicated between the client and lawyer.

However, the existing wording of section 54 is far narrower. Legal advice privilege only applies to “communications" between “a person who requests or obtains legal advice” and their lawyer.

This means a number of documents that, in principle, should be privileged are not currently protected by section 54.

For example, on a literal interpretation of section 54, a lawyer's own notes are not privileged under section 54 unless they are communicated to their client.

The Commission also cites communications between a lawyer and a non-party witness or independent expert as an example of communications that are not clearly protected by legal advice privilege. Where litigation is on foot, such communications would generally be protected by litigation privilege. But there are many situations where it is necessary for lawyers (including in-house counsel) to communicate directly with other professional advisors to provide legal advice. Provided such communications are intended to be confidential and made in the course of and for the purpose of seeking or providing legal advice, there is no reason in principle why, for example, an in-house lawyer’s communications with their organisation’s accountant should not be captured by section 54.

However, because section 54 privilege only applies to communications between the person seeking advice and their lawyer, the Act is not equipped to extend legal advice privilege to such circumstances. That is clearly at odds with the common law position and first principles. The Act was intended to codify the common law, so it is doubtful that Parliament intended to limit the scope of legal advice privilege in this way.

The Commission recommends amending section 54 to clarify that legal advice privilege applies to any document (in addition to any communication) prepared for the purpose of obtaining or providing legal advice and removing the requirement that the communication be made “between the person and the legal adviser”.

Clarifying that litigation privilege (section 56) does not terminate when litigation comes to an end

Litigation privilege (also known as preparatory privilege) protects all materials made, received, compiled or prepared for the “dominant purpose” of preparing for a proceeding. This can include material that would be covered by legal advice privilege but can also include other material created to prepare for litigation such as communications with witnesses.

It has long been debated whether litigation privilege should terminate once the litigation that created the privilege (and any related litigation) comes to an end. Unsettled case law about whether litigation privilege continues after proceedings have been resolved causes issues with respect to disclosure or discovery of documents from previous proceedings. Without clarity on this point, it is unclear whether those documents remain privileged.

The Commission recommends amending the Act to confirm that litigation privilege does not terminate simply because proceedings come to an end. This brings New Zealand into line with the position in England and Wales. Interestingly, this is a departure from the Commission’s second review of the Act, which favoured the approach taken in Canada that once the litigation has concluded, there is no need for the privilege to endure.

Settlement privilege (section 57) and the interests of justice exception

Settlement privilege (also known as without prejudice privilege) protects communications between parties to a civil dispute or with a mediator, made in confidence for the purpose of attempting to settle or mediate the dispute.

The Act contains a number of exceptions to settlement privilege. Perhaps the most controversial of which is general “interests of justice” exception. It provides that settlement privilege does not apply to:

… the use in a proceeding of a communication or document made or prepared in connection with any settlement negotiations or mediation if the court considers that, in the interests of justice, the need for the communication or document to be disclosed in the proceeding outweighs the need for the privilege, taking into account the particular nature and benefit of the settlement negotiations or mediation.

The Commission noted there is some uncertainty in the case law applying to the “interests of justice” exception that has developed since the Act. Although the common law recognised a similar “interests of justice” exception, the scope of this exception has not yet been considered by the Court of Appeal or Supreme Court since the Act was introduced. It remains uncertain whether the Act extends the interests of justice exception to a broader range of situations than the common law did.

While the Commission acknowledged there remains some uncertainty, it does not recommend reform to clarify the scope of the exception. Instead, the issue should be left to the courts to develop the law in this area.

Extending medical privilege (section 59) to all ‘health practitioners’

The Commission sought views on whether medical privilege should apply to a broader range of healthcare professionals than just medical practitioners (doctors) and clinical psychologists – whether they are acting on behalf of a medical practitioner or clinical psychologist, or in their own right.

The Commission recommends amending section 59 to extend the privilege beyond medical practitioners and clinical psychologists to “health practitioners” as defined in section 5 of the Health Practitioners Competence Assurance Act 2003. This was the approach preferred by most submitters that supported reform.

Hearsay statements to be presumptively admissible in civil proceedings unless challenged

A hearsay statement is an out-of-court statement made by a person who is not a witness that is offered in evidence to prove the truth of its contents. As a general rule, hearsay statements are not admissible in court proceedings. The general rule against hearsay is subject to exceptions. In particular, a hearsay statement can be admitted provided that the circumstances relating to it give reasonable assurance as to its reliability.

The hearsay rule only applies to statements which are offered as evidence of the truth of what was said. Hearsay statements may still be admissible as evidence of the fact the statement was made.

The High Court Rules currently require parties to give notice of any challenge to admissibility in briefs of evidence within 20 working days after receipt of the brief by the challenging party. However, the courts have held that failure to adhere to the High Court Rules does not displace the mandatory statutory criteria for the admissibility of hearsay statements in the Evidence Act. In other words, a failure to raise an admissibility challenge does not make inadmissible evidence admissible or vice versa.

The Commission recommends adopting a presumption that a hearsay statement is admissible in a civil proceeding unless its admissibility is challenged by another party. It also proposes mandating that any challenge to the admissibility of the hearsay statement be made in accordance with the relevant rules of the court unless the judge directs otherwise. This will mean that, under the current High Court Rules, challenges to hearsay in briefs of evidence will need to be made before trial (within 20 working days after receipt of the brief by the challenging party) unless the judge directs otherwise.

If the admissibility of hearsay evidence is challenged, the court would determine admissibility under the Act’s existing hearsay rules. If admissibility is not challenged, the statement will be deemed admissible and the reliability of the hearsay statement would be treated as a matter of weight by the fact-finder (unless the judge allows a late challenge).

In our view, adopting a presumption that hearsay statements are admissible unless challenged should not fundamentally change the way parties run cases. The fact a hearsay statement would be presumptively admissible if a party fails to object to it does not mean it will suddenly carry more weight. Hearsay would continue to be hearsay. In civil trials, judges are well placed to consider each hearsay statement on its merits and give it appropriate weighting as part of the substantive decision. Parties are unlikely to benefit from mechanically objecting to every conceivable hearsay statement, regardless of its overall significance to the issues in dispute.

Use of mātauranga and tikanga evidence in court proceedings

The Commission recognises the need to ensure that the rules of evidence are fit to accommodate the growing use of mātauranga (Māori knowledge) and tikanga evidence in Court proceedings.

This builds on the Commission’s earlier study paper on the role of tikanga Māori concepts in state law (statute and common law) - a topic we have covered closely as part of our He Poutama Series examining the growing influence of tikanga in different areas of law. See our series here.

The Act currently does not specifically provide for tikanga and mātauranga evidence. The current rules against hearsay and opinion evidence can create challenges for the admissibility of mātauranga and tikanga evidence, particularly evidence deriving from the tradition of oral history or kōrero tuku iho in te ao Māori. In most cases, the expert evidence provisions of the Act are engaged to admit mātauranga and tikanga evidence. However, it is less clear how such evidence is admissible where the expert evidence provisions have not been utilised. 

It is interesting to note that consideration of the impact of the hearsay rule and te ao Māori is nothing new. As early as 1991, the Law Commission remarked that “the hearsay rule has always posed problems for the reception of evidence of Māori custom”. At that time, the Commission considered these problems would be eliminated by its proposed exceptions to the hearsay rule by making it easier for the law to take proper account of reliable oral sources.

Despite those proposed exceptions finding their way into the present Evidence Act, the Commission considers further reform is needed to normalise the admission of tikanga and mātauranga. It notes that “the Act currently treats oral history as prima facie inadmissible due to the perceived inherent unreliability of hearsay”.

To resolve the issue, the Commission recommends introducing an exception to the Act to provide that the hearsay rule does not apply to a statement offered in evidence to prove the existence or content of mātauranga or tikanga.

For a more in-depth look at the role of mātauranga and tikanga in litigation, follow our He Poutama series as we continue to examine the role of tikanga in different areas of law. [You can sign up for this series and other publications at the bottom of this page.]

Clarifying the scope of the duty to cross-examination

The duty to cross-examine, also known as the Browne v Dunn rule, is codified in section 92(1) of the Act, which states:

In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

Despite the Act framing section 92 in terms of an absolute duty, the courts have confirmed a flexible and purposive approach should be taken to determine the scope of the duty. Bearing in mind the primary purpose of the duty is to ensure a witness is given a fair opportunity to respond to contradictory evidence, the courts have frequently held that section 92 “need not be slavishly followed where the witness is perfectly well aware that his or her evidence is not accepted on a particular point”. 

The Commission noted that this qualification to the rule is often ignored in practice where an overly literal interpretation of section 92 is causing lawyers to “err in the direction of excess” to avoid potential non-compliance with the duty, “resulting in unnecessary and overcautious questioning”.

The Commission has recommended amending section 92 to clarify that the duty to cross-examine only applies if the witness or the party that called the witness is or may be unaware of the basis on which their evidence is contradicted.

In most civil cases, the duty to cross-examine should largely be displaced by the exchange of written briefs of evidence and pleadings in advance of trial. Once a witness has seen the opposing party's evidence on a particular matter, it will usually be reasonable to expect that they will be aware of the basis on which their evidence is contradicted. However, given this recommendation is simply designed to ensure the Act reflects the way the courts already interpret section 92, amending the Act would seem to be directed at facilitating a common understanding of the rule among the profession.

Get in touch

If you would like further advice on any aspect discussed in this article, please get in touch with one of our experts.

Special thanks to Abe Trask-Coombs, Tom Hammond and Sarah Gwynn for their assistance in writing this article.