Fundamental Changes to High Court Procedure: What Litigants Need to Know
The High Court handles Aotearoa’s most complex and high-value civil and commercial cases. From 1 January 2026, new rules will change the way these cases are run. The High Court (Improved Access to Civil Justice) Amendment Rules 2025 (New Rules) reform previous practices and procedures with the aim of tackling the biggest barriers to civil litigation – cost, complexity and delay. To take full advantage of these changes, litigants should be familiar with the key features of the New Rules.
A stronger focus on proportionality
The New Rules replace the previous objective – “to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application” – with an “overriding objective” focussed on proportionality. The New Rules state:
The overriding objective of these rules is to secure the just resolution of any proceeding or interlocutory application by proportionate means, including by securing its speedy and inexpensive determination.
This overriding objective is intended to inform all judicial discretion exercisable under the New Rules (including rules which have not been amended).
A proportionality test existed under the previous regime in relation to discovery. That test involved the Court balancing the time, cost and effort involved in a proposed discovery exercise against the potential value of the discovery (i.e. the prospect that discovery would yield relevant documents and the degree of relevance), having regard to the amount in dispute and the resources of the parties. Under the New Rules, we expect that a similar cost-benefit analysis will apply more broadly to case management to ensure that all procedural steps are tailored to suit the needs and circumstances of each case. A party seeking a procedural step or interlocutory order will always need to address proportionality.
A new duty to co-operate
The New Rules also introduce a positive duty to co-operate, requiring parties and their legal representatives to work with other parties to move cases forward in line with the overriding objective. This duty will not be satisfied by exchanging letters and emails, and instead requires direct, constructive discussions between representatives on procedural matters. It remains to be seen how the duty to co-operate will be implemented in practice, but it is anticipated that the Court will expect parties to reach agreement wherever possible so inter-party negotiations will form a key part of any proposed procedural step or interlocutory order.
Enhanced initial disclosure
The New Rules retain the previous requirement that parties provide initial disclosure with their first substantive pleading (usually a statement of claim or defence). The scope of this initial disclosure is, however, enlarged.
Under the New Rules, initial disclosure must include copies of all documents in a party’s possession which:
(a) are referenced in the pleading;
(b) have been used when preparing the pleading;
(c) the party currently intends to rely on at the hearing; or
(d) constitute adverse documents.
The first three categories are broadly consistent with the previous requirements for initial disclosure, although the second and third categories are now listed separately instead of being treated as one combined category (i.e. documents used when preparing the pleading and on which the party intends to rely at the hearing). The fourth category is the most significant change as it requires disclosure of adverse documents that a party knows about at the initial disclosure stage.
The New Rules define an “adverse document” as a document which:
(a) contains information that is adverse to the case of the disclosing party or any other party, or that supports the case of another party; and
(b) the disclosing party knows, or has good reason to believe, exists.
The requirement that adverse documents be known to the disclosing party is drawn from the Business and Property Courts of England and Wales and places an important limit on the scope of initial disclosure. Where a party is not a natural person, knowledge will be determined in accordance with the usual rules of attribution (i.e. for companies, the knowledge of those directors, officers, employees and agents involved in the relevant conduct will usually be imputed to the company).
Unlike the previous discovery obligations, the New Rules do not require parties to search for adverse documents. Instead, a disclosing party need only take reasonable steps to check for the existence of adverse documents. This means that if a party believes an adverse document may exist, or knows an adverse document exists but is unsure of its location, it is obliged to check to ascertain the position. The starting point is a party’s awareness of adverse documents (rather than the identification of custodians and repositories of all potentially relevant documents, as required under the previous discovery regime).
The New Rules preserve previous protections for privileged and confidential documents and permit documents that are privileged or confidential to the disclosing party to be withheld from initial disclosure. Documents can also be withheld from initial disclosure if they are reasonably assumed to be in the possession of all parties.
A new feature of the New Rules is that initial disclosure must be verified by affidavit. The requirements for affidavits for initial disclosure are similar to those for affidavits of documents under the previous rules, including that parties must confirm that they understand, and have complied with, their disclosure obligations, and briefly describe the steps taken to check for the existence of adverse documents.
A further new feature is that parties have a continuing obligation – at all stages of a proceeding – to disclose any documents that fall within the categories for initial disclosure.
Discovery deferred
The New Rules remove the presumptive entitlement to full discovery (either standard or tailored) before the exchange of evidence. This reflects the expanded scope of initial disclosure, which in some cases may be sufficient to achieve the overriding objective. The architects of the New Rules have, however, stressed that the new initial disclosure regime is not intended to replace discovery and, in most cases, it is expected that targeted discovery orders will be made after the exchange of factual evidence.
The deferral of discovery adopts the approach applicable in New South Wales and aims to reduce the costs and delay often associated with discovery in civil proceedings. Instead of embarking on the process of locating, listing, producing and inspecting documents at an early stage of proceedings, the New Rules postpone discovery and recast it as “further disclosure”. The expectation is that, with the benefit of pleadings, enhanced initial disclosure and factual evidence, parties will have a clearer appreciation of the real issues in dispute at the time further disclosure orders are sought and, as a result, less extensive orders will be required. The scope of further disclosure orders sought against a party is likely to have an inverse relationship with the quality of that party’s initial discovery – with wider-ranging orders being needed where a party takes a narrow approach to its initial obligations.
While the New Rules give the Court the discretion to order further disclosure at any time in a proceeding, orders for further disclosure before the service of factual evidence are expected to be rare. Based on the experience in New South Wales, cases where early orders for further disclosure may be warranted are likely to include complex commercial disputes, cases involving allegations of fraud, and class actions.
In keeping with the overriding objective and duty to co-operate, the New Rules contemplate that further disclosure will usually be dealt with by agreement, and requests for further disclosure will be confined to specific documents that are both relevant and material, and for which there is a good reason to believe they exist. Orders for further disclosure may require parties to check for documents or undertake searches.
Evidence first
The New Rules adopt an “evidence first” model which requires factual evidence to be exchanged promptly after proceedings are commenced. While the timeframe for statements of defence is increased (from 25 working days to 30, from service of a statement of claim and notice of proceeding), under a default timetable, factual evidence is due promptly:
(a) For plaintiffs: within 25 working days of the filing of the last statement of defence (or reply, if an affirmative defence or counterclaim is raised by a defendant);
(b) For defendants: within 45 working days of receipt of the plaintiff’s factual evidence.
Each party’s factual evidence must be served together with a draft chronology and copies of any documents referred to in a witness statement or the draft chronology (which have not already been provided in initial disclosure).
Under the New Rules, evidence will take the form of witness statements instead of briefs of evidence. Although the requirements for witness statements in the New Rules are similar to the previous rules governing briefs of evidence, significant emphasis is placed on restricting witness statements to relevant and admissible factual evidence that a witness can give. The New Rules explicitly require factual witness statements to be confined to matters within a witness’s personal knowledge and to avoid referencing documents (unless the witness has relevant evidence to give about them). Underscoring this change, the New Rules allow documents to be received into evidence if they are referred to in chronologies. This contrasts with the previous regime, under which the main way documents were received into evidence was by having factual witnesses refer to them. These changes will mean that factual witness statements will not canvas the documentary record and will be much shorter than briefs of factual evidence were previously.
To further reduce the potential volume of evidence, the New Rules limit each party to one expert witness per topic and mandate expert conferences (unless a judge directs otherwise). In addition, the New Rules expressly permit witness statements to be taken as read at trial (i.e. avoiding the need for a witness to read their statement out in Court).
The default timetable in the New Rules may be varied by the Court where necessary to meet the overriding objective. The default timetable will otherwise apply to all ordinary proceedings unless a party files one of five interlocutory applications now known as “dispositive interlocutory applications”. A dispositive interlocutory application is, generally, one which is capable of ending a proceeding fully or against a specific party (i.e. applications to add or remove parties, for security for costs, raising a protest to jurisdiction, for strike out or summary judgment). Once a dispositive interlocutory application is filed (on notice and within 25 working days of the filing of the last statement of defence or reply), the default timetable is suspended pending determination of the application.
After all factual evidence and draft chronologies have been filed, a case will be listed for a “judicial issues conference” (JIC) before a judge. The JIC is described further below, but issues to be addressed at the JIC will include the timetable for expert evidence and non-dispositive interlocutory applications.
Heightened judicial scrutiny
The JIC is an important new feature of the New Rules intended to provide rigorous judicial engagement with cases. Unlike more perfunctory case management conferences and list appearances, JICs will be a substantive fixture. Listings will be scheduled to start at 11.45am and conclude at 3.30pm, with the option to continue past 3.30pm as needed. Parties will be expected to attend, in addition to their legal representatives.
The New Rules specify that the purpose of a JIC is to identify:
(a) the key issues in dispute in a case and the parties’ relative positions on these; and
(b) the procedural steps needed to bring a case to an end, including by means of mediation.
Each party is required to file a position paper addressing these matters, together with a bundle of key materials, in advance of the JIC. Position papers will be an opportunity for advocacy – akin to mini-opening submissions. Plaintiffs must also file a draft timetable to take the case through to trial, prepared in consultation with the other parties.
The New Rules gives judges a wide discretion to make any orders they think appropriate to achieve the overriding objective at a JIC. It is therefore open to parties to use the JIC to advance arguments on interlocutory matters.
Be prepared
For the majority of civil proceedings in the High Court, the New Rules will front-load much of the work – and cost – to progress a case to trial. Litigants should be ready to engage early with cases, and plaintiffs would be well advised to have the preparation of their factual evidence substantially underway pre-commencement. Defendants will need to act quickly after service of proceedings to critically assess the claim against them and their position, and ensure they meet their short-dated obligations for initial disclosure and service of factual witness statements.
The rule changes reflect an increasing emphasis on access to justice, collegiality and pragmatism in litigation in Aotearoa. There is an express and consistent shift in the New Rules towards proportionality, co-operation and efficiency. For litigants seeking to deploy a combative style, the New Rules will make it harder to weaponise civil procedures (e.g. by issuing proceedings without a genuine intent to pursue them and using discovery and interlocutory applications to prolong proceedings and drive-up costs). Parties can also expect increased judicial encouragement to participate in mediations and settlement negotiations.