A new framework will govern ordinary civil proceedings commenced in the High Court from 1 January. The High Court (Improved Access to Civil Justice) Amendment Rules 2025 mark a significant shift in the conduct of civil litigation intended to streamline proceedings, reduce costs, and advance the proportionate and efficient resolution of civil proceedings in the High Court.

The new regime introduces a suite of reforms to the High Court Rules. The most notable of these are:

• a greater emphasis on proportionality;
• the evidence-first model, where written fact evidence is filed much earlier in a proceeding;
• enhanced disclosure obligations, front loading document disclosure and minimising the need for what has become a time consuming and expensive full discovery process; and
• a judicial issues conference involving the parties and their lawyers at an early stage of the proceeding.

But what does that mean for litigants? We outline the key changes below and offer our predictions for how they will reshape litigation strategy and practice in the years ahead.

Key changes

Overriding objective: Proportionality at the centre

The new regime places proportionality at the heart of procedural decision-making. While retaining the goals of just, speedy, and inexpensive resolution, the new rule provides that when deciding how the overriding objective applies in any case the court may consider:

• how best to fairly and expeditiously identify and resolve the issues in dispute;
• how best to deal with the proceeding in ways that are, and at a cost that is, proportionate to the nature of the dispute and the issues in dispute; and
• the need to allocate the Court’s resources fairly across the its caseload.

This shift is expected to influence both new and existing discretions under the rules. We expect that the proportionality touchstone will be applied to disclosure from the outset, limiting cases in which full disclosure akin to the ‘discovery’ is required. However, over time, parties, practitioners and the Court will likely apply it to other aspects of proceedings, such as witness statements and trial length.

Duty to co-operate

A new general duty of co-operation applies to parties and their legal representatives. It is embedded throughout the rules as a general requirement and at key procedural steps, including disclosure, judicial issues conferences, and preparation of the common bundle for trial. This duty is intended to encourage a broader cultural shift and reduce the procedural burden of the Court.

Parties and practitioners are expected to engage early and constructively to streamline proceedings, reduce unnecessary interlocutory disputes, and focus in on the core issues in contention.

Taking practical steps to adopt a more collaborative approach and engage constructively, particularly in the early stages of litigation is in the best interests of parties. It can reduce costs and effort devoted to disputes on matters which could be resolved collaboratively. The Court has a range of tools available to ensure compliance from procedural directions designed to enforce co-operation to adverse costs orders.

Evidence first model: A procedural reversal

Perhaps most transformative is the introduction of an evidence-first model. Under the previous regime, discovery (now disclosure) and interlocutory skirmishes preceded the exchange of substantive evidence. This lead to increasingly detailed evidence that often stepped through a lengthy chronology of discovered documents. Evidence far exceeded what a witness could recall and often strayed events that were not directly relevant to presumptively to be determined. The new rules reverse this sequence.

Parties will now be required to:

• Complete enhanced initial disclosure at the time of filing initial pleadings. This requires disclosure of all documents referred to or used when preparing the pleading (as per the previous rules) as well as any documents that the party intends, at that point in time, to rely on at trial (or other hearing). It also requires disclosure of “all adverse documents” that the party knows exist or has good reason to believe exist. For corporates, this belief will be attributed to them from officers and employees following the common law rules of attribution [1]. This is likely to require a “check”, but not a “search” for known adverse documents [2].
• Serve factual witness statements and the new draft chronology early, ahead of any further document disclosure and most interlocutory applications. The plaintiff must file its factual evidence by the later of 25 working days after the service of the last “initial pleadings”, (the last pleading responding to any affirmative defence or counterclaim), or resolution of any dispositive interlocutory applications. The defendant(s) (and any third party), will then need to file factual evidence by 45 working days later. The Court has discretion to give alternative directions as to timeframes and the order of events where it is satisfied that this will best achieve the overriding proportionality objective. Expert evidence is to be filed later.

Parties may seek further disclosure through targeted requests for documents. These are expected to be addressed between the parties, with the Court becoming involved only where agreement cannot be reached. The Court also retains a discretion to order further, detailed disclosure, akin to discovery, before witness statements are filed. This discretion is most likely to be exercised where it can be established that disclosure is necessary to plead or particularise pleadings or to prepare evidence.

This reversal is intended to encourage early engagement with the substance of a dispute, reduce delays in proceedings resulting from interlocutory applications, and enable the court to tailor directions based on a clearer understanding of the factual and legal landscape of the proceeding.

Dispositive Interlocutory Applications

The rules now distinguish between dispositive and non-dispositive interlocutory applications. Only the former may be determined before, and there have the effect of delaying factual evidence. Dispositive applications are those that would, if determined, either dispose of the proceeding or change the nature of, or parties to, the proceeding, such that it would be inefficient to require factual witness statements and chronologies in advance. They include protests to jurisdiction, summary judgment, strike-out applications and applications for security for costs.

Judicial issues conference (JIC)

Following the service of factual evidence in a defended ordinary proceeding, a date will be set for a judicial issues conference. This is a substantive fixture designed to identify determinative issues and set the course for trial or alternative resolution.

The default agenda for JICs (which can be modified if a Judge directs otherwise) includes:

• identifying the key issues and the parties’ positions on them;
• discussing potential steps to settle or minimise the dispute by means of facilitation, mediation or otherwise;
• timetabling and procedural matters to trial;
• whether any further disclosure is needed; and
• resolving, or timetabling and deciding the mode of hearing for, interlocutory matters.

Parties are required to attend the judicial issues conference with their lawyers.

Changes to production of contemporaneous documents

The new regime places greater focus on contemporary documents as the primary source of factual evidence. There will no longer be an expectation that relevant documents need to be produced by witnesses. Instead, relevant documents will come before the court by way of:

• initial disclosure (discussed above);
• the parties’ merged chronology (new);
• a narrative of events relied on in each party’s opening submissions; and
• the common bundle.

Our predictions

In the short term, we expect a period of adjustment as parties, practitioners and the judiciary test the boundaries and application of the new rules. There is likely to be inertia in the first year or so of the regime before the required cultural shift occurs. Many cases, bought before 1 January, will still be working their way through the old process. We therefore expect a period of two to three years where practicioners and the Court are running two separate systems.

The most significant adjustment for parties and practitioners will be the additional procedural and substantive demands at the outset of a proceeding Defendants in particular have tight timeframes for disclosure including to complete checks for adverse documents. Parties and practitioners will need to engage deeply with the substance of their case earlier than under the current regime with evidence and document review from the outset. We expect this “front loading” of substantive case preparation will:

• front load legal costs for parties, but should reduce the costs of proceedings overall;
• result in earlier resolution of disputes when litigants are faced with increased early costs and a better understanding of their own and other parties’ cases, with assistance from Judges at the new JICs; and
• at least initially, result in various disputes over the scope and timing of additional document disclosure. We expect the Court will receive many applications to reverse the order of disclosure and factual evidence in the first year of the new regime and until clear guidance has been set by the Court through decisions as to when reversal will be appropriate.

Although not immediately, over time the new regime will reduce the number of mid-range disputes before the Court. Parties involved in disputes with values of $1 million or less are likely to be deterred from issuing tactical (though valid) proceedings to expedite settlement, given the heavy upfront costs of doing so.

Debt recovery proceedings will for the most part fall outside the scope of the new regime. It applies only to ordinary civil proceedings, not to bankruptcy or liquidation proceedings. Summary judgment applications are also excluded from its ambit. It is likely that proceedings in the Auckland Commercial List, largely being commercial cases with a value of more than $1 million, will be exempt from some aspects of the new regime.

Likewise, we expect parties to very high value and complex factual disputes to experience less of a sea-change. The flexibility embedded into various procedural stages means that these cases may be run in a way that mirrors the previous approach.

For organisations involved in High Court civil litigation, the new regime represents both a challenge and an opportunity. The shift toward early evidence, streamlined procedure, and documentary focus will require parties to engage more deeply, and earlier, with the substance of their case. Those who adapt quickly will be better positioned to manage risk, control costs, and shape proceedings to their strategic advantage. As the new rules come into force, proactive preparation and a clear understanding of the procedural landscape will be essential.

Footnotes

[1] Access to Justice Sub-Committee Memorandum to the Rules Committee of 20 September 2024, at [11(i)].

[2] Rules Committee Drafting Instructions for changes to the High Court Rules (9 February 2024) at [23].