CROWN LAW LITIGATION – POLICY AND PROTOCOLS

Policy
All litigation Crown Law undertakes  is to be conducted in accordance with our
instructions but at all times:
•  in the public interest;
•  in the case of civil litigation, in a manner consistent with the Attorney-General’s Civil
Litigation Values;
•  in compliance with the Lawyers and Conveyancers Act (Lawyers: Conduct and Client
Care) Rules 2008, the Cabinet Directions for the Conduct of Crown Legal Business,
the Cabinet Manual 2017 (and in particular ch 4), the New Zealand Public Service
Code of Conduct and the applicable Rules of Court;
•  in accordance with the policy and protocols set out below; and
•  with due regard to supporting  Crown Law guidelines  relating  to the  conduct of
Crown litigation.

Applies to
The  policy  and protocols set out in this document apply  to al   Crown Law counsel
employed  full-time,  part-time or on a  casual  basis, on  a  permanent  or  fixed-term
employment agreement.

Rationale
Our clients and the courts expect Crown counsel to exemplify the highest standards of
integrity and competence.
Adherence to Crown Law’s litigation policy and protocols wil  ensure consistency in the
way we deliver services to the Crown and assist counsel to achieve the high standards our
clients and the courts expect, without impinging on the exercise of sound  professional
judgement.

Alignment with
This policy is consistent with the Crown Law Strategy.
Crown Law

Strategy

Protocols
When litigation is conducted on behalf of clients, it is conducted on behalf of the
Solicitor-General. Al  litigation must be conducted within the framework of the
principles set out in this policy and supporting guidelines.

Receipt of Documents

•  Ensure you are not accepting service in respect of a defendant for whom Crown Law
should not properly act or for whom we do not have instructions to accept.

•  Before accepting service of any documents that name a Minister of the Crown in his
or her personal capacity, notify the Solicitor-General or a Deputy Solicitor-General.

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CROWN LAW LITIGATION – POLICY AND PROTOCOLS

Receipt of Instructions

•  Receipt of instructions to conduct litigation on behalf of a client must be
acknowledged promptly in writing in line with the Client Relationship Management
Protocol. If proceedings are served directly on Crown Law, advise  the interested
client department(s) immediately and the manager of any other team within Crown
Law that may have an interest in the subject matter.
•  Unless the conduct of the litigation comes within the terms of any appropriation
made directly to Crown Law, the file must be set up as chargeable to the relevant
Crown Law client(s).
•  If two or more Crown Law clients are named and there is no conflict of interest in
Crown Law representing both, or if the Attorney-General is named on behalf of
more than one department or agency, agreement must be reached as to which client
will be responsible for providing our instructions, and how the costs will be covered.
•  If the proceeding raises an issue of particular public important or sensitivity,  the
Solicitor-General must always be informed.

•  The Solicitor-General must be notified whenever Crown Law is asked to assist on
matters of defamation involving Ministers.  Refer to the Defamation Proceedings -
Guidelines.
•  The Team Managers of the Constitutional and Human Rights Team must be notified
of any litigation that contains an issue in relation to the New Zealand Bill of Rights
Act 1990, the Human Rights Act 1993 and rights arising under international human
rights instruments.
•  The Attorney-General must be kept informed of most litigation in which the
Attorney-General is the defendant.  This can be achieved through the Weekly Report
to the Attorney-General.
•  Briefing of external counsel or Crown Solicitors must be undertaken in line with the
requirements of the Briefing External Counsel Policy and Guidelines.
•  Al  litigation matters must be opened and matter information maintained in line with
Crown Law’s 3E Matter Creation & Ongoing Matter Maintenance Protocol.

Filing of Proceedings

•  Any instructions to issue proceedings (other than appeals) in any court or tribunal
must first be referred to and approved by a Deputy Solicitor-General. Refer to
Filing of Proceedings Policy.

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CROWN LAW LITIGATION – POLICY AND PROTOCOLS

Appeals

No notice of appeal, or application for leave to appeal or cross-appeal on behalf of any
Crown Law client shal  be filed without the following authorisation:

Tribunal and District Court appeals to the  Team Managers
High Court
Case stated appeals to High Court;  Team Managers
appeals against decisions of Associate
Judges under s 27 of the Senior Courts
Act 2016
Appeals to Court of Appeal
Deputy Solicitors-General  (via Team
Leader)

Appeals to Supreme Court
Solicitor-General (original authority)

Litigation Management

•  A  litigation  management  plan must be completed in al  cases other than Habeas
Corpus proceedings, abides and criminal appeals to the Court of Appeal.  You may
use  the  Litigation Management Plan Template  as a guide.  Refer to Litigation
Management Planning/Debriefing - Guidelines.

•  All documents must be signed in accordance with the Signatory Policy: Legal Work.

•  Only one file and service letter  should be used to cover both file and service
requirements of the document. This ensures that there is a record of both filing and
service in one place on the file.
•  Al  court documents must be completed using the Crown Law precedent system and
in conformity with the Crown Law Style Guide.  Citations and other references to
authorities must conform to the New Zealand Law Style Guide, which Crown Law
has adopted for that purpose.

•  All court documents that we receive or file must be retained in a pleadings folder
that records the date each document was received at Crown Law or filed, as the case
may be.  Pleadings folders may  be maintained in hard copy (either in a separate
folder or as a clearly marked section of the correspondence file), but must be stored
electronically in pdf. They must be stored in such a manner that any other counsel
who is required to refer to the file can readily locate a complete and accurate set of
court documents.

•  If you are contemplating the use of an expert witness, refer to the Engagement of
Expert Witnesses Policy.
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CROWN LAW LITIGATION – POLICY AND PROTOCOLS

Sealing Judgments/Debriefing

•  Unless counsel decides that there is a good reason not to seal orders, all orders other
than those made by the Supreme Court must be sealed after judgment.  Enough
copies of the document must  be sealed so that the Court keeps one, Crown Law
retains one on file and al  other parties who have filed an address for service are
forwarded a sealed copy of the judgment.  Until a sealed order is obtained the
judgment is susceptible to being recal ed.   A sealed order is required in order to
enforce a judgement, for example an award of costs.
•  Debriefing  is required on completion of all litigation.  See Litigation Management
Planning/Debriefing - Guidelines.
•  Precedents in respect of sealing judgments or interlocutory orders can be found
under Precedents on the Professional Standards WorkSite page.

Representation

Where Crown Law acts in any proceeding, appeal or application for leave to appeal, the
al ocation of counsel to conduct the case for the Crown Law client shal  be approved as
follows:

Any proceeding in or appeal to the  Team Managers
District Court or High Court
Appeals or applications for leave to  Deputy Solicitors-General (but in the case
appeal to the Court of Appeal
of criminal appeals, the Team Managers)
Appeals or applications for leave to  Solicitor-General (original authority)

appeal to the Supreme Court

Billing and Reporting

The bil ing fee earner (responsible counsel assigned to the file) must ensure that the client
is kept informed of progress on the file and to ensure timely and accurate invoicing in
accordance with the Billing Policy and Billing Process and Guidelines.  If an estimate for
fees has been given to the client, the bil ing fee earner must monitor activity on the file to
ensure the work wil  completed within the estimate and liaise with the client if the
estimate wil  be exceeded.

Guidelines
All counsel must be familiar with the requirements of the following guidelines when
conducting litigation to ensure that due consideration is given to the particular subject
areas covered by these documents:

•  Crown Law Litigation – Appeals and Applications for Review – Guidelines

•  Crown Law Litigation – Defamation Proceedings – Guidelines

•  Crown Law Litigation – Filing of Proceedings – Policy

•  Crown Law Litigation Management Planning – Guidelines

•  Crown Law Litigation – Representation – Guidelines

•  Crown Law Litigation – Service of Proceedings on the Crown – Guidelines

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CROWN LAW LITIGATION – POLICY AND PROTOCOLS

Forms
Use the following forms to:
•  Acknowledge receipt of instructions – Precedent – Letter of Engagement

•  Complete a Litigation Management Plan Template

•  Complete a Memorandum Seeking Approval to Appeal/Review

•  Complete a Precedent - Discovery Letter.

•  Complete a Precedent - File & Service Letter

•  Complete a Precedent – Letter of Instruction – Engagement of Expert Witness

Other References  The following policies, guidelines and resources apply to various aspects of managing
litigation files:
•  Cabinet Directions for the Conduct of Crown Legal Business 2016
•  High Court Rules rule 5.37
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008
•  the Attorney-General’s Values for Crown Civil Litigation
•  Briefing External Counsel Policy
•  Communicating with the Legal Services Agency Policy
•  Conflicts of Interest When Acting for the Crown Guidelines
•  Engagement of Expert Witnesses Policy and Guidelines
•  Intervention in Proceedings on behalf of the Law Officers Policy and Guidelines
•  Settlements Policy and Guidelines
•  Signatory Policy and Guidelines: Legal Work

•  Crown Law Practice (CLP)  seminars  provide guidance that will be relevant to the
steps taken in Crown litigation.

•  Crown Law Style Guide and NZ Law Style Guide

•  Email Policy
•  File Management –  Finalising, Profiling and Saving Documents and Document
Security Guidelines
•  File Management – Physical Files for Legal Matters Guidelines
•  File Management – Worksite Pages Guidelines

•  3E Matter Creation & Ongoing Matter Maintenance Protocol
•  Billing Policy and Billing Process and Guidelines.
•  Client Relationship Management Protocol

Key Personnel
The following key personnel have responsibilities under this policy.

Position
Role
Responsible counsel assigned to  To ensure all litigation is conducted in accordance
the litigation matter
with this policy and supporting guidelines.

Policy
Policy Owner – Convenor, Professional Standards Committee.
information
Last reviewed January 2021.
To be reviewed no later than January 2024.

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Document Outline