The Hart Fuller Debate

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Positivism and the Separation of Law and Morals
From Harvard Law Review, Vol. 71 (1958), pp.593-529

John Austin - ”The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.”

Sir William Blackstone in his “Commentaries said,” that the laws of God are superior in obligation to all other laws; that no human laws should be suffered to contradict them; that human laws are of no validity if contrary to them; and that all valid laws derive their force from that Divine original.”

The Nazi Experience

Many German thinkers who lived through the Nazi regime, reflected upon its evil manifestations in the legal system and converted to Natural Law.

One of these thinkers, Gustav Radbruch, had himself shared the “positivist” doctrine until the Nazi tyranny, but he was converted by this experience.

Before his conversion Radbruch held that resistance to law was a matter for the personal conscience, to be thought out by the individual as a moral problem, and the validity of a law could not be disproved by showing that its requirements were morally evil or even by showing that the effect of compliance with the law would be more evil than the effect of disobedience.

Radbruch, however, had concluded from the ease with which the Nazi regime had exploited subservience to mere law-or expressed, as he thought, in the “positivist” slogan “law as law” (Gesetz als Gesetz)-and from the failure of the German legal profession to protest against the enormities which they were required to perpetrate in the name of law, that “positivism” (meaning here the insistence on the separation of law as it is from law as it ought to be) had powerfully contributed to the horrors.

His considered reflections led him to the doctrine that the fundamental principles of humanitarian morality were part of the very concept of Recht or Legality.

No positive enactment or statute, however clearly it conformed with the formal criteria of validity of a given legal system, could be valid if it contravened basic principles of morality.

However, this position contradicts the very basic assertions of positivists like John Austin, who in the Province of Jurisprudence Determined said,

“The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God. ..the court of justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment.”

The Grudge Informer Case
Judgment of July 27,1949, Oberlandesgericht, Bam berg, 5 Siiddeutsche Juristen-Zeitung 207 (Germany 1950)

In 1944 a woman, wishing to be rid of her husband, denounced him to the authorities for insulting remarks he had made about Hitler while home on leave from the German army. The wife was under no legal duty to report his acts, though what he had said was apparently in violation of statutes making it illegal to make statements detrimental to the government of the Third Reich or to impair by any means the military defense of the German people.

The husband was arrested and sentenced to death, apparently pursuant to these statutes, though he was not executed but was sent to the front. In 1949 the wife was prosecuted in a West German court for an offense which we would describe as illegally depriving a person of his freedom (rechtswidrige Freiheitsberaubung). This was punishable as a crime under the German Criminal Code of 1871 which had remained i 

The wife pleaded that her husband’s imprisonment was pursuant to the Nazi statutes and hence that she had committed no crime.n force continuously since its enactment.

The court of appeal to which the case ultimately came held that the wife was guilty of procuring the deprivation of her husband’s liberty by denouncing him to the German courts, even though he had been sentenced by a court for having violated a statute, since, to quote the words of he court, the statute “was contrary to the sound conscience and sense of justice of all decent human beings.”

HLA Hart uses this case to make the following point:

This reasoning was followed in many cases which have been hailed as a triumph of the doctrines of natural law and as signaling the over throw of positivism. The unqualified satisfaction with this result seems to me to be hysteria. Many of us might applaud the objective-that of punishing woman for an outrageously immoral act-but his was secured only by declaring a statute established since 1934 not to have the force of law, and at east the wisdom of this course must be doubted. 

This reasoning Hart argue offends the very basic legal principle of Nulla Poena Sine Lege.

“No penalty without a law“, it refers to the legal principle that one cannot be punished for doing something that is not prohibited by law. This principle is accepted as just and upheld by the penal codes of virtually all modern democracies.

Hart’s Solution

There were, of course, two other choices. One was to let the woman go unpunished; one can sympathize with and endorse the view that this might have been a bad thing to do. The other was to face the fact that if the woman were to be punished it must be pursuant to the introduction of a frankly retrospective law and with a full consciousness of what was sacrificed in securing her punishment in this way.

What about “Nullum crimen, nulla poena sine praevia lege poenali“?

Which means penal law cannot be enacted retroactively.

Hart’s justification:

“Odious as retrospective criminal legislation and punishment may be, to have pursued it openly in this case would at least have had the merits of candour.”

It would have made plain that in punishing the woman a choice had to be made between two evils, that of leaving her unpunished and that of sacrificing a very precious principle of morality endorsed by most legal systems. Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it. Like nettles, the occasions when life forces us to choose between the lesser of two evils must be grasped with the consciousness that they are what they are.

Fuller’s View

“The only formula that might be called a definition of law offered in these writings is by now thoroughly familiar: law is the enterprise of subjecting human conduct to the governance of rules. Unlike most modern theories of law, this view treats law as an activity and regards a legal system as the product of a sustained purposive effort.” The Morality of Law

- Lon Luvois Fuller (1902 – 1978)

Background

Lon Fuller develops and defends a modern version of Natural Law Legal Theory.

Like any NLLT, it holds that there is a conceptual connection between law and morality.

Fuller’s theory differs from Classical NLLT in at least two ways: nIt is not committed to Natural Law Ethical Theory

It applies at the level of the entire system, not of individual laws.  (That is, it asserts a holistic connection, not an atomistic connection, between law and morality.)

Eight Ways to Fail to Make Law

Rex’s Troubles:

Rex, the newly installed king, is determined to improve the legal system of his country.

He sets about to make reforms in the legal system only to make one blunder after another.

If Fuller is right, Rex fails on eight occasions to make law, and for eight different reasons.

Failure #1:  No Generality

Because Rex finds it hard to draft general rules, he decides to take legal disputes on a “case-by-case” basis.

There are not general rules at all—only particular decisions in particular cases.

Failure #2:  Secret Rules

When the “case-by-case” method failed, Rex made general rules, but refused to publish them.

Though he tried to apply the rules as he had written them, only he knew what the rules were.

Failure #3:  Retroactivity

When the problems with the secret statute approach to law were apparent, Rex decided he would decide all cases at the end of the year and publish the rules of law he had used to decide them.

No rules of law were made before they were applied.

Failure #4:  Unintelligibility

After complaints about the ex post facto approach to law, Rex finally published a legal code.  It was, though, (like our tax code) completely unintelligible.

Though citizens had a published code in advance, they could not understand it. 

Failure #5:  Logical Inconsistency 

Hurt by objections to his first attempt at publishing a code in advance, Rex worked to make the code intelligible.  Unfortunately, the new code was highly contradictory

Not a single provision existed that was not contradicted by another provision.

Failure #6:  Requiring Impossible Actions

When his subjects rejected his contradictory code, Rex was, frankly, irritated with them

He published a code that required of his subjects actions that it was impossible for them to perform.

Failure #7:  Excessive Change

Rex worked hard to redraft the law—even enlisting the help of a group of experts.

No sooner had the new code gone into effect than it was completely replaced by another, and that by another, and another.

The law changed day-by-day, minute-by-minute.

Failure #8:  Not Applied as Stated

Finally, Rex decided to solve the problems with the excessive changes in the code by deciding cases himself. 

Sometimes he would decide them in accordance with the code, often not.

The statutes were no help in determining how a case would be decided.

8 Ways to Fail to Make Law

Fuller argues that the parable shows that law must, as a conceptual matter, in general be:

General;

Promulgated (published);

Prospective (non retroactive);

Intelligible;

Logically consistent;

Such as to require only the possible;

Relatively constant over time; and,

Applied as stated.

These eight requirements are uncontroversial requirements on the existence of a legal system.

Complete failure in any of the eight respects entails the absence of a legal system—not merely the absence of a good legal system

Each of the eight requirements is, as well, a moral requirement.

To the degree that any system of social control falls short with respect to any of these, it is morally deficient.

These requirements constitute a sort of “procedural moral requirement” for legal systems.

Procedural Moral Requirement:  They do not place a “content restriction” on legal systems.

Legal Systems:  They do not place any restrictions on individual laws.  Individual laws may have any of these eight features and still be valid in virtue of their place in an existing legal system

“It’s Already In There!” Positivists have always said that law is a system of social control through rules.  That means that whatever is necessary for social control through rules is a requirement on a legal system. Fuller has just drawn out an implication of positivism.

The classical debate between positivism and NLLT has always been whether there are substantive limits on what can count as a law or a legal system.

Fuller’s “Inner Morality of Law” argument does not show that there are such limits.

Furthermore, NLLT has always argued that there is a connection between law and morality that is “special to law”.  That is, it is something about a system’s being a legal system that establishes the connection.

Fuller’s “Inner Morality of Law” theory holds equally of all systems of social control through rules.

The costs crisis – mediation as a solution? CEDR’s submission to the Jackson Inquiry into legal costs – by Dr. Karl Mackie, Barrister and Chief Executive of CEDR and Tony Allen, Solicitor and a Director of CEDR

NOTE: This is a revised submission based on a first draft which was written before the Interim Report of Sir Rupert Jackson was published and which now responds to a number of points raised by him in that Report, and also  other recent developments.  This version replaces the earlier version and can be regarded as embodying all CEDR’s responses to the request for views.  Also attached are papers by Tony Allen, firstly dealing with the new Pre-issue Conduct Practice Direction and secondly (as requested by Sir Rupert) with his own experience of mediation of personal injury and clinical negligence cases.

CEDR’s role in promoting the cost-effectiveness of mediation

CEDR – the Centre for Effective Dispute Resolution – was set up as a not-for-profit in 1990 by the CBI and a group of lawyers who were determined to find a cheaper and quicker means of resolving disputes than was then offered by the civil justice system.  It did so through three related routes – first by offering ADR services of high quality, primarily mediation, but also neutral evaluation, expert determination and adjudication; second, by training mediators of high quality to deliver both its own services and to make available a cadre of mediators nationwide in a wide spectrum of professions and businesses to help transform thinking and experience throughout the legal and commercial community; and thirdly to raise awareness of the benefits of alternative dispute mechanisms for civil justice within both that community, and also government and the judiciary. 

Twenty years on from CEDR’s foundation, the face of civil justice has undoubtedly changed.  We whole-heartedly endorse Sir Rupert’s analysis of the impact of the CPR which opens his Interim Report.  The Civil Procedure Rules 1999 emerged from the Woolf Access to Justice process, and CEDR made a full contribution to consultations initiated by Lord Woolf as the basis for his reports.  The CPR have undoubtedly brought a more simplified unified look to the system, with a number of useful procedural reforms such as Part 24 and Part 36.  What has undoubtedly changed dramatically is the litigation culture as a whole.  A less adversarial and more co-operative approach to dispute resolution is widespread entirely congruent with the fact that alternative dispute resolution occupies a significant status in civil justice thinking and practice.  Our system requires parties to place their cards “on the table”.  The most dramatic lesson learned from CEDR’s privileged opportunities to train mediators and consult on civil justice reforms in a number of common law and civil law jurisdictions world-wide is that in most others, not to ambush is technically negligent. Here, to ambush an opponent risks an adjournment with costs sanctions for the ambusher.  This may take some of the fun out of justice for lawyers, but it certainly and very properly removes uncertainty and improves advance risk analysis for parties, the people and business for whose benefit the litigation system exists.

Lord Woolf’s first ambition was to reduce costs and delay.  While delay has been much reduced by the overall package of reforms, except perhaps in certain limited areas where business has grown (such as in asylum and associated administrative cases), the cost of litigation appears to have escalated.  Why should this be so, from CEDR’s standpoint, being an organisation which is dedicated to reducing not only the delay but the cost of litigation?

CEDR’s own research into costs savings through mediation

CEDR has regularly conducted surveys of the mediation market-place for its biennial Congress, the most recent of which was in November 2007.  The findings which have emerged from the most recent survey of users of mediation about the costs which the mediation process can properly be claimed to save are that by achieving earlier resolution of cases that would otherwise have proceeded through litigation, the commercial mediation profession will in 2007 have saved UK business in excess of £1 billion a year in wasted management time, damaged relationships, lost productivity and legal fees. Since 1990, mediation as an activity has contributed savings of £6.3 billion to business.  By way of a comparator to these figures, CEDR’s audit results suggest that the aggregate value of the mediation profession in terms of total fee income, is around £8.2 million.  But there are simply no figures to demonstrate what mediation has saved in terms of time and cost in areas of personal litigation such as personal injury, employment, private property disputes and so on.

The cost of mediation itself

Mediations of substantial claims by experienced mediators are normally charged out at an hourly rate for the mediator, based on a projected estimated time for each dispute.  Thus typically a mediator may be charged at anything between £200 to £400 per hour on the basis of four or five hours preparation and a ten hour mediation day. 

There are those who complain that mediation adds to costs, especially when it does not produce a settlement of a dispute.  A mediation usually involves a team of lawyers plus a mediator for a day of about eight to eleven hours, plus preparation for all which may occupy another working day for both legal teams and perhaps four to five hours for the mediator.  This is an appreciable investment of time when converted into hourly rates, the main component of which is the cost of each legal team, rather than the mediator.  The investment pays off in anything from 60-90% of cases, depending on the sector, the mediator, and on the willingness of the parties to buy up the risks in their respective cases.  Many which do not settle on the mediation day settle later and as a direct result of the shifts in thinking produced by the mediation.  But even in mediations which do not settle and lead to trial or appeal, preparation work that will have been needed to be done anyway is done at an earlier stage than otherwise, and the issues thereby usefully defined and limited.  For this reason mediators tend to talk not of failed mediations but mediations which did not settle the claim immediately or at all.  It is almost never the mediation process or the mediator which obstruct settlement at a mediation: the intrinsic value of both of these in enhancing settlement negotiations has been proven time and again.  It is usually the assertion of a genuine difference, or (more often in CEDR’s experience) intransigence or unwillingness of one or other party, and sometimes both parties, to buy up their risk on legal, expert or factual issues, or the huge costs at stake, which get in the way of settlement.

Until recently it did not appear possible to monitor or restrict the size of a legal team at any mediation.  Now that CEDR’s standard mediation agreement and others provide for the costs of preparation and attendance at the mediation, together with the fees of the mediator and any provider, to be treated as costs in the case, whether or not the mediation settles the case, it becomes possible for  a paying party to argue that the size of an opponent’s team was disproportionately large or expensive.  Such a point can be made either in advance of the mediation or at a later detailed assessment hearing.  It is almost always the case that the hourly rates of lawyers are by far the highest component in the cost of any mediation.  As mediation really does not need more than one or at most two lawyers per party, this should be quite an effective sanction, once it is realised that it exists.

CEDR’s views about the high cost of litigation

So what is CEDR’s view about what is keeping the cost of litigation up?  Firstly, there can be little doubt that mediation is still under-used.  Estimates are difficult where there is no central repository of information about mediation but there seem to be something like 4,000 mediations per year, excluding the over 2,000 small claims mediations so successfully conducted each year through the small claims in-court mediators (where legal costs are normally not at issue, and savings are measured in terms of District Judge small claims trials saved).  This is contrasted with the aggregate number of proceedings issued in the QB and Chancery Divisions and the County Courts in 2006-07, the last year for which statistics are available, a total of a little over 2,036,000 claims.

CEDR’s impression from its own statistics is that mediation is being used reasonably regularly (especially in London and main regional centres) in commercial, property, finance and professional indemnity disputes, with employment disputes (mostly within the jurisdiction of the Employment Tribunal) adding a further 16% to its caseload.  But in the largest single area of litigation, namely personal injury and its smaller associated area (where mediation is particularly apposite) clinical negligence, CEDR’s caseload has reduced from 8% to 6% in the last three years.  This is in part attributable to an adjustment in CEDR’s market share, with more PI mediation providers in competition perhaps dealing with a globally larger caseload.  But overall the picture is clear – that despite the efforts of CEDR and others over at least ten years, the take-up of mediation in these sectors is still disproportionately low when measured both against its success rate and the anecdotal evidence from feedback taken from participants which CEDR records after nearly every mediation.  It is noteworthy that the NHS Litigation Authority asserts publicly its willingness to mediate such cases, but comments that it is hardly ever invited to mediate by claimant solicitors in this field.

We know that the vast majority of litigation now settles.  Figures vary but most quote a rate of over 90%.  This is a trend which existed before the CPR and which the Woolf reforms have undoubtedly done everything to support and increase, making trial a last resort.  So the civil justice process, largely designed with trial in mind, has to be tested against its capacity to generate settlement.  The question arises as to whether it makes adequate provision for achieving good settlements early enough, in default of which a swift and inexpensive route to trial remains open.  CEDR believes that the best chance of early settlement is still not being taken. CEDR shares the recently asserted view by Dame Hazel Genn in her 2008 Hamlyn Lectures that civil justice needs status and better funding, but firmly rejects her apparent view that settlement is itself undermining the strength of the civil courts by starving them of the opportunity to declare the law.  There is no evidence whatsoever in the Law Reports of impoverishment of the quantity or quality of judicial decisions.  Nor could the courts cope with 90% more cases.  Nor are risk-discounted settlements, reached in the shadow of the law, necessarily any less “just” than judgements.

The pre-action protocols (PAPs) were and are a brave effort to bring the first safe settlement moment as early as possible and indeed prior to the issue of proceedings.  CEDR feels a considerable degree of frustration about the apparent ineffectiveness of the PAPs in reducing the number of issued claims.  Breach of their requirements have remained signally under- or unenforced by courts when proceedings are later issued.  CEDR’s firm view is that such proper enforcement, especially of the requirements to try ADR as spelt out in all the PAPs and their Practice Direction (the PAP/PD), would have led to substantial savings in litigation costs.  Indeed, the whole rationale of the Woolf reforms in relation “front-loading” of work had this in mind.   Where the PAPs are observed properly and timeously, each party to a dispute should usually have enough knowledge safely to settle without exposing their lawyers to charges of professional negligence for advising settlement on an insufficient basis.  The only decided case of which we are aware in which a costs sanction was nearly imposed because one party failed to mediate before issue is Burchell v Bullard [2005] EWCA Civ 358, and even there the criticism was mainly directed at failure to respond to an invitation rather than failure to comply with the requirements of the Construction and Engineering Protocol.

We are told that in the construction sector, there is perceived to be a significant disincentive to early mediation in that the fees and costs associated with a pre-issue mediation cannot be recovered, citing Lobster Group v Heidelberg Graphic Equipment Ltd and another [2008] EWHC 413 TCC, a decision of Coulson J.   We are not convinced that this decision is a general authority for that proposition.  In Lobster, Coulson J declined to include the costs of a pre-issue mediation in an order for security for costs.  The mediation took place 2 ½ years before proceedings and was not expressed to be in compliance with the relevant PAP.  Furthermore, the parties had agreed to bear their own costs of preparation and attendance, and to share the mediation fees.  Coulson J drew a distinction between the costs of work done in compliance with the pre-action protocol and “costs of a separate pre-action mediation”, which he regarded as not being “costs of and incidental to the proceedings”, as required by the Supreme Court Act 1981 s.51 if they are to be treated as recoverable costs.  However, most standard mediation agreements (and this includes the CEDR Model Agreement and Procedure) now provide that mediation fees and associated legal costs may be treated as costs in the case where a court is invited to rule on them, even if initially shared or borne by each party.  Coulson J made this the main basis for his decision not to reopen the previous agreement.  Of course, so long as costs may be regarded as “incidental to the proceedings” CPR 44.3(6) makes it clear that these can include costs incurred before proceedings have begun.  Indeed, in personal injury claims, there is an expectation that where a claim is settled before issue of proceedings, the defendant will pay the claimant’s costs on the standard basis or in accordance with any predictive costs tariff such as is included in CPR Part 45.  The practice in pre-issue mediations of personal injury claims is to expect the defendant who pays more than any previously offered sum, whether formally under CPR Part 36 or not, to pay for the mediation fees and associated costs in addition to damages and any other agreed outcome.  The position has however been further clarified by Roundstone Nurseries Ltd v  Stephenson Holdings Ltd [2009] EWHC 1431 TCC, in which it was held that the costs of a pre-issue mediation held in accordance with the PAP were recoverable.  Thus the costs associated with any mediation held pre-issue, and specifically in accordance with a PAP, will be recoverable if the parties agree that this should be so before at or after the mediation.  In passing, it is worth noting that, once mediation costs are justiciable in principle, there should be no reason why mediation fees and costs could not form the subject of “costs-only” proceedings as to quantum of costs, under CPR Part 44.12A.

Procedural judges need to raise questions of their own motion about whether mediation has been tried before issue and where dissatisfied with the replies impose a sanction on either or both parties.  It is too easy for lawyers on both sides to have a brief conversation about how impossible settlement is before issue and to dress that up as an attempt to comply with each PAP’s ADR requirements.  It is tempting for a lawyer to think that “if I am reasonable with the opponent’s dereliction this time, he will be reasonable about mine next time”.  This may suit the lawyers but does it suit either their clients or the legal system with its overriding objective to allot an appropriate proportion of the court’s resources to each case.  This is why case management was taken from the legal profession and conferred on the judges, who should properly take the initiative over compliance with PAP requirements, using a proactive inquisitorial approach rather than expecting only to determine issues that one party raises adversarially.

Even if there is good reason for not mediating a case to conclusion on all aspects shortly before issue, there is no reason why liability cannot be dealt with separately.  Limitation periods are generous, even where three years , and it is noticeable that many mediations of personal injury cases, whether before or after issue, are of cases where the full limitation period was exploited before issue, so that the facts can be anywhere from three to six years old by the time of mediation or trial, sometimes more.  Three years is a long enough time to sort out liability in virtually any case.  And even where for good reason, issues in a given case mean that mediation cannot safely take place before issue of proceedings, the court is entitled to keep a close note of case management timetables to ensure that it is inserted at the right moment.

A degree of oversight and if need be compulsion may even be needed to be exercised over procedural judges in terms of implementing such a policy.  The degree to which ADR Orders are made around the country seems to vary wildly.  Some District Judges and Masters are enthusiasts and some are not.  Some were in legal practice since mediation became a commonplace feature of the civil justice scene: many were not and have no direct experience of it except as something which sounds vaguely in competition with mainstream civil justice and is therefore not to be welcomed or fostered.  It is not clear to us to what extent there is informed training of judges about ADR through the Judicial Studies Board.  CEDR was hired some years ago to deliver 30 minutes of such training and was funded by the DCA to produce a video as part of that component of the refresher training for Circuit and District Judges, but we have heard nothing more of that for over two years.  Lack of knowledge and experience about ADR must inevitably influence judicial decision-making when it comes to ordering ADR in the ways commended by Halsey v Milton Keynes NHST.  In our view, it should be a rare case where a trial takes place without a previous mediation. 

A previous round table or joint settlement conference should not be adequate as compliance, as these suffer from a number of disadvantages, where mediation offers positive procedural benefits. These include contractual formality for the process, and the presence of a neutral to promote the interests of lay parties and to enhance negotiations by discovering true positions in confidential meetings with each party. We should like mediations to take place through voluntary choice by parties on the advice of their legal advisers without the need for court pressure, but there is still a palpable lack of information about and experience of mediation among practitioners, which is artificially hampering the use of mediation and depriving parties of informed choice.  Lord Clarke MR has tellingly spoken several times about this.  While “magic circle” firms in London and the regions are well informed, this is not so of the vast majority of law firms around the country.  Even in firms where one partner may know something about the process, it remains less than comprehensively disseminated.  In that case, it seems clear both from Halsey that ADR Orders may be made, and further from subsequent strong suggestions by Lord Phillips of Worth Matravers and Lord Clarke MR that Halsey is not to be regarded as authority for the proposition that ADR Orders cannot be made against the wishes of either or both of the parties.   The norm should be for mediations to precede issue of proceedings, with sanctions where this is not attempted.  This is especially important with fast-track cases, where full mediation after issue is less likely to be cost-effective.  The courts should know however that there is inexpensive mediation on offer through the National Mediation Helpline, and with special low-cost schemes which include telephone mediation as available through CEDR’s Personal Injury Unit (PIU).  Where not to mediate before issue is excusable in multi-track cases, mediation should be built into the case management timetable in all cases except where good reason is given for excusing it. 

The wording of the Protocols themselves

CEDR understands that a comprehensive review of the PAPs is under way, something which CEDR supports firmly.  CEDR has been arguing for some time that the current wording of the PAPs as it relates to ADR is confusing and inaccurate.  Sir Rupert’s Interim Report actually quotes one of the key misleading passages, which has found its way into them all as standard wording and is currently still there, although it has just been removed from the new Pre-action Conduct Practice Direction. That wording is:

“It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR”. 

CEDR objected at the time of the first draft of the 41^st amendment that this sits very uncomfortably with the first part of the PAP, in the section dealing with ADR and costs sanctions. It also represents a very misleading summary of the law as enunciated by the Court of Appeal in Halsey and related cases before and after.  Leaving aside whether the Court of Appeal’s controversial view as to the possibility that compulsory ADR would be in breach of Article 6 of the ECHR is right (it is certainly obiter in that judgment, a view since endorsed by Lord Clarke MR, with further doubt cast on that aspect of Halsey by Lord Phillips of Worth Matravers), Halsey expressly approved use by the courts of the Commercial Court ADR Order found in Appendix 7 of the A&CC Guide.  The Admiralty and Commercial Court has continued to make such orders since about 1994 without difficulty or embarrassment, and with apparent full willingness to comply.  The same might be thought true of the Technology and Construction Court, with tight case management in place for many years by trial judges.  However, in relatively close-knit jurisdictions like those, there is less need to compel compliance or to threaten costs sanctions.  In the hurly-burly of the Queen’s Bench and Chancery Divisions and the associated jurisdictions in the County Courts, a very different atmosphere and a much looser discipline inevitably prevails.  Also Halsey gave approval of the “Ungley” order, though this frankly occurs so late in the life of a case (shortly before trial) that there is much less scope for costs saving by then.   The court also made it clear that a successful litigant can be penalised for declining to use ADR, especially if this is done in the teeth of an ADR “Order” or even a judicial recommendation to use ADR (such as when a single judge suggests it when granting permission to appeal, as occurred in Dunnett). 

That wording (from the original Construction and Engineering Protocol) was of course drafted long before the decisions of Dunnett and Halsey.  Its reproduction in the later unification of the PAPs has all the hallmarks of a cut-and-paste job, to which little thought was given.  For the PAPs to use wording which is effectively ambiguous in this way has  been less than helpful.  The cases and the principles they decide are pretty clear, and we believe that the right step to take is simply to delete this sentence.  Fortunately this wording appears to be on the way out.  As noted above, it has been deleted from the new Pre-action Conduct Practice Direction since 6 April 2009 (which merely now says that “although ADR is not compulsory….”).  The old wording still appears currently in each of the PAPs, however.  Whether this is intended to show that these words should be given special emphasis or are about to be deleted is not explained!

A recent paper written by Tony Allen reviews the effect of the new Pre-issue Conduct Practice Direction (the PCPD), comparing it with the old Practice Direction.   The PCPD certainly promoted ADR more clearly as a proper pre-issue step, without its being made compulsory.  We believe that improved performance of the obligations imposed by the PAPs, buttressed by proper enforcement by the judiciary, would make major savings by encouraging settlement of a greatly increased proportion of claims before issue of proceedings and therefore to the overall cost of litigation.

Case studies: the existing costs regime and mediated settlements

CEDR sent out a limited circulation questionnaire to its most frequently used senior mediators to ask what impact the costs of litigation has had in their experience on success or otherwise in settling disputes at mediations.  Inevitably the response was too small to analyse statistically, but there are some telling pieces of anecdotal evidence which may be of interest to the Jackson review.  We set out the most significant of those as case studies under various self-explanatory headings, with some comments in italics where necessary.

 Costs incurred getting in the way of settlement

Case study A

In a mediation of a construction dispute between C and D, the gap between them was closed from £400,000 to £10,000.  D made an offer which amounted to what C could get at trial, plus more than standard basis costs.  C’s solicitor insisted on payment of his costs in full (these costs looked to the mediator to be high).  D would not go so far and C was not told (at least not in the mediator’s presence) that he could have his own solicitor’s costs assessed if too high.  Settlement on either standard or indemnity basis later with detailed assessment if not agreed, was not acceptable either.   Settlement was not achieved and trial took place, resulting in an order for indemnity costs against D.

Case study B

An early attempt at mediation in a dispute between C and D was aborted when D discovered that the mediator had no accreditation.  C refused an alternative mediator unless their legal costs of the abortive mediation were paid. D applied for a mediation stay but C resisted and the Master delayed this until evidence had been exchanged.  By the time of the mediation proper, £200,000 costs had been incurred under C’s CFA, and D, who made concessions on the claim, refused to pay costs at that level, and settlement consequently was not achieved at the mediation. 

Case study C

Liability for PI claim was admitted early but quantum (especially future loss) heavily disputed, and at trial C failed to beat a Part 36 offer of £35,000 by under £1,000.  C suffered the normal costs sanction and had to bear both sides’ costs of trial.  C appealed.  At mediation, C’s costs were said to be over £200,000, embodying a success fee of 100%.  D was prepared to offer no more than £100,000 inclusive of costs.  The mediation failed.  Shortly before the appeal, D offered a global sum of £160,000 including costs which C accepted.  C’s solicitors privately agreed to take a considerably reduced costs figure in case they lost costs altogether (though of course C would be deemed to have “won” anyway, having been advised to reject the Part 36 offer).  It was an interesting example of solicitors and their barrister working under a CFA acknowledging that they too faced a risk and buying it up, along with their client.

Mediating costs disputes in group litigation

Case study D

A group litigation claim was settled in a global sum of £3.2 million between about 500 claimants and various public bodies with unified representation.  The costs claimed by the claimants’ solicitors were sought in the sum of £3.5 million despite a costs cap which applied to a period of 18 months prior to trial. After two days mediation, a figure of £1.7 million plus VAT was agreed. 

Case Study E

The claims of just over 1900 claimants were settled for an aggregate of just over £3.3 million, but costs of the two claimant group law firms were bitterly disputed.  D offered £1.3 million and paid it on account.  A day’s mediation was required to settle the generic and individual costs claimed at a global figure of £1.6 million, with a further £300,000 paid.

Public funded cases

Case study F

C claimed up to £100,000 damages for a failed gynaecological operation which had led to temporary incontinence until repaired. Conflicting evidence on breach of duty had come from experts for C and D Trust.  At pre-trial review, the judge advised mediation.  For D Trust to pay 1p damages to C, they had to pay £48,000 in costs to C’s solicitors because of the statutory charge.  They declined, the case was tried and C got nothing.  Had an early mediation been held, there was every chance that C and D Trust would both have bought off the risk of losing at a time when C’s costs were modest.

Before the event insurance

Case study G

A had suffered four successive whiplash accidents within a two year period.  She settled the first shortly after the second, and settled the third and fourth just before trial.  She pursued the second claim against D2 funded by her BTE insurance up to a limit of £50,000, but lost badly against a Part 36 offer of £5,000.  She appealed.  At a Court of Appeal mediation D2’s insurers offered her £30,000 but on condition that they received £40,000 of the BTE indemnity fund for their costs of trial and appeal, leaving C’s lawyers with £10,000.  C was prepared to accept that offer but her lawyers were not.  The appeal failed.

After the event insurance and Conditional Fee Agreements

Mediators comment that CFAs with ATE insurance produces a very unhealthy strain bordering on conflict of interest between client, lawyers and even insurer.  This is exacerbated when defendants choose to solve the problem by proposing a global settlement, leaving the recipient to fight over the division of spoils.  Solicitors are prepared sometimes to compromise on their success fees to facilitate a settlement.

Case study H

H and W claimed harassment against F Finance in seeking to enforce loans.  H was terminally ill and unlikely to survive to trial.  H and W’s solicitor acted under a CFA with 100% uplift, and were acting for other claimants in similar cases, so had a wider interest in the result.  Within the confidentiality of a mediation, F Finance were prepared to offer much more than they feared they might be liable for if they lost, but would not offer 100% uplift on their solicitors’ costs.  The solicitors would not compromise on their uplift, no deal was reached and the case went to trial.  As in Case Study F, the mediator was confronted with a form of conflict of interest between clients and their lawyer, where the lawyer’s interests were not fully aligned with the clients’ interests.

Case study I

At a mediation late in a case, where there had been stepped premiums for the ATE insurance policy supporting the CFA, the threat that a huge premium would shortly be incurred if settlement did not emerge encouraged D to propose a satisfactory settlement figure.

Case study J

In a mediation between a US company D Inc and its UK agent C, C claimed past c0mmissions of £180,000 plus costs of £96,000 to date.  D Inc offered £100,000 all-in, buying up their risk by offering their estimated irrecoverable costs should they lose.  C’s lawyer wanted his full mark–up which produced a total costs claim of £168,000.  Settlement was only achieved after the mediation day but agreeing a payment of £161,000, paid as to £156,000 to C’s solicitor and £5,000 to C.

See also Case study C above

The impact of past and future litigation costs estimates

CEDR’s respondents all commented upon the huge impact on persuading parties to settle that a review of past and future projected costs had upon settlement.  Many solicitors are advising their clients that the cost of litigation is prohibitive for lower value claims and hence that mediation may be a better forum with less cost at stake.  In commercial disputes between unequally strong companies, there is often a real risk that the weaker will be forced into liquidation by the potential damages and costs burden.  Where a mediator gets this recognised by a strong party, it makes finding a sensible solution easier.

Case study K

In a six-party construction case twelve years ago, where two contractors were suing clients on their final accounts, who in turn were seeking to blame their professional advisers, the costs to date of all parties six weeks before a 12 week trial with most parties represented by leading counsel were £6 million.  The negligence claim settled for £250,000, with the client forced to pay the bulk of the final accounts and seriously out of pocket on damages and costs. 

Case study L

At a recent mediation, the parties divulged to each other the fact that the costs to date were £250,000 and that proceeding through trial would cost another £450,000.  The parties were “shocked” into settlement.

Defendant CFAs

Case study M

A and B were employed by C Ltd as dry-lining subcontractors on a major building site, and were badly injured by the collapse of a wall on which they were working, which had been built by D Ltd on the instructions and design (such as it was) of E plc, the main contractor.  E plc pleased guilty to an HSE offence and settled the claims and A and B for a total of just under £500,000 including the legal costs of A and B.  E plc then sought contribution from C Ltd and D Ltd, offering to bear one third each.  The Part 20 proceedings were mediated shortly before trial.  E plc had entered a CFA with their lawyers which entitled the lawyers to a success fee in the event of obtaining a contribution from either or both of C Ltd and D Ltd, recoverable from those Part 20 defendants in the event of a “win” as so defined.  This would have added more than £250,000 to the settlement of A’s and B’s claims on a 100% basis.  In the event, the lawyers compromised on their costs substantially, accepting a contribution of £289,000 offered as one-third of the total sum, leaving E plc to bear two-thirds.

Agreement on costs and detailed assessment

In many cases, exhaustion has set in by the time settlement is reached, and parties are often content to agree that costs shall be allowed to the successful party on the standard basis, subject to detailed assessment if not agreed.  That is usually the last that the mediator hears.  This is how many settlements will doubtless be negotiated outside mediation.  Our impression is that costs are normally agreed rather than resort to detailed assessment which seems to be regarded as hugely cumbersome and expensive as a process.  Costs are also quite frequently agreed at the mediation as well, especially if the defendants want to press for some concessions from the claimant’s solicitors in relation to their CFA success fee.

In some mediations, especially where there is a CFA, the defendants will try to offer costs inclusive global settlements.  This creates tension between claimant and legal team, but occasionally, as in Case studies C and M above, the lawyers will acknowledge their own risks as to reputation with their client or the possibility of the client losing and thus the no-win-no-fee basis depriving them of costs altogether and accept such offers.

Hourly rates, agreed and fixed fees

It may not seem to lie comfortably in the mouths of an organisation which puts mediators out effectively on an hourly rate to criticise the hourly rate regime.  In fact the hourly rates quoted by CEDR are almost always rolled up into an agreed allocation of time, in effect capping the hours allocated, and turning the mediator’s fee into an agreed fixed sum for an agreed period.  An hourly rate for extra hours is quoted and agreed in advance, but the parties have separate autonomy over whether to require the mediator to stay.  With the court excluded from knowing anything about the circumstances in which a mediation ends, either party can walk out with impunity.  Remarkably, this is very rare, and extra hours are often agreed which lead to settlement.

But our general point is that hourly rates without control or a cap are effectively a blank cheque for a lawyer.  They are of course always under possible scrutiny through detailed assessment, but the mediations we have done on major costs disputes suggest that this is regarded by all as a desperate last resort.  In such cases, the argument has been deployed that hours spent on cases should be less if cases are undertaken by expert lawyers.  If that is the case there may be little practical difference between more hours by a junior lawyer and fewer hours by a more senior lawyer.  This suggests that scales of fees might be possible.  It is undoubtedly true that where there is a ceiling on recoverable costs for work, there is an incentive to do it efficiently and even innovatively.  It also will put a premium on settling early, if prolonged litigation or a timely settlement are going to produce broadly the same reward regardless of time invested.  Of course there is the argument that quality suffers if remuneration is capped, but this is a balance that will always need to be struck.  Conversely, so long as a lawyer can charge for time spent without any realistic controls, especially if he is entitled to add a success fee of up to double his hourly rate without any close control on whether he is doing unremunerative work on cases that fail for which the success fee is supposed to compensate him, he will continue to do so.  Detailed assessment does not operate as an adequate deterrent to full charging because it is so relatively rare, so other controls may in the public interest be necessary.

Conclusions

Many of our observations stem from what we have seen peripherally at mediations and may not be regarded as derived from mainstream experience.   However, the main thrust of our comments is to suggest that there are major unrecovered costs savings available if mediation were to be used more systematically at an earlier stage in disputes.  CEDR has received little feedback that mediations fail to settle cases simply because the process is attempted too early.  There is inevitably a tension between settling before costs have been incurred as opposed to settling later when information is fully exchanged.  The salutary lesson of Case Study B above serves as a reminder of the huge expense that can be incurred if litigation takes the orthodox course.  The other tension is for lawyers anxious not to be accused later of settling at an under-value.  But clients are entitled to choose when and at what level to settle, and there are ways in which lawyers can protect themselves against allegations of under-settling.  Expert lawyers should be able to guide clients adequately on liability and at least the principle of causation by the end of any limitation period, and indeed by the end of properly observed obligations under the pre-action protocols.  Even if prognosis or damages quantification still require investigation, some issues can be sorted out by then at the latest.  In these days of split trial orders, lawyers on both sides of the claims divide are much more inured to being unable to play one aspect off against another.

So our primary solutions are to suggest that:

• greater attention is paid to requiring pre-issue mediation in accordance with the ADR requirements of the pre-action protocols;
• the PAPs to be revised and made to accord with the true current thinking as to pre-issue ADR;
• failure to observe these without reasonable explanation should result in costs sanctions for either or both parties;
• any continuing doubt over the position over costs in relation to pre-issue mediations, particularly where held in response to the requirements of any pre-action protocol or CPR Practice Direction, be clarified and the true position confirmed, so as to make such fees and costs recoverable in default of agreement to the contrary;
• in cases where later mediation is deemed right on all or some of the issues, this is planned early on into an appropriate window of the case management timetable, and the failure by parties to have mediated by the time of any case management hearing (whether CMC or PTR or a specific application) be queried as a matter of course by the procedural judge.

On other aspects, we express concerns about the use of CFAs and the conflicts of interest that these generate, especially bearing in mind that they are hugely difficult to explain to lay clients.  We are keen to see settlement incentivised by reducing the reliance on hourly rates uncapped by time, so that those who try to arrange early settlement can aspire to a premium level of costs.  CEDR will meanwhile do what it can to keep its own charges down consistent with its overall aim to cut the cost of conflict as much as we can while ensuring that the very special skills of mediators receive adequate remuneration commensurate with those skills. 

Thanks are due to experienced CEDR Solve Direct mediators Stephen Bate, Sir Henry Brooke, Michael Cover, Terry Jones, Francis Neate, Nicholas Pearson, Joe Shammah and David Miles for both their contributions to this report and contacts.

CASE MANAGEMENT AND ITS ADVANTAGES – By Justice M. Jagannadha Rao

‘Case Management’ as a system of rules has not been introduced in India. For the first time, pursuant to the direction issued by the Supreme Court of India in SALEM ADVOCATES BAR ASSOCIATION vs. UNION OF INDIA, the Committee constituted by the Supreme Court in that case has circulated Model Rules in a Consultation Paper sent to the High Courts, Bar Councils and Bar Associations. Some responses have come in to this paper.

In the Consultation Paper prepared by the Committee appointed by the Supreme Court, it has tried to explain the concept of ‘Case Management’. It has referred to Lord Woolf’s Interim Report on ‘Access to Justice’ (http://www.lcd.gov.uk/civil/interim/chap5.htm) and to the final Report of Lord Woolf (http://www.lcd.gov.uk/civil/final/contents.htm) and the Report of the Australian Law Reform Commission on ‘Judicial and Case Management’ (1996) (http://www.austlii.edu.au/au/other/alrc/ publications/bp/3/management.html).

In the United States of America, sec. 479(c)(1)-(3) of the Civil Justice Reform Act, 1990 (28.U.S.SC) which required ‘case management’ systems be introduced, was adopted in response to strong and persistent demand for reform of the civil litigation process to reduce cost and delay. In enacting it, Congress stated:

“Evidence suggests that an effective litigation management and cost-and-delay-reduction programme should incorporate several interrelated principles – including –

(A) the differential treatment of cases that provides for individualized and specific management according to their needs, complexity, duration and probable litigation careers;

(B) early involvement of a judicial officer in planning the progress of a case, controlling the discovery process, and scheduling hearings, trials and other litigation events;

(C) regular communication between a judicial officer and attorneys during the pre-trial process.”

(See Manual for Litigation Management and Cost and Delay Reduction, Federal Judicial Centre, 1992, Washington DC)

In the United States, where now case-management systems are firmly established, the Federal Judicial Centre, Washington D.C. has referred to the ‘active role’ of the Judge:

“to anticipate problems before they arise rather than waiting passively for matters to be presented by counsel. Because the attorneys may be immersed in the details of the case, innovation and creativity in formulating any litigation plan may frequently depend on the court.”

The courts’ substantive role consists of the ‘Judge’s involvement’ not merely limited to procedural matters but refers to his becoming familiar, at an early stage, with the substantive issues in order to make informal rulings on issues, dispositions, and narrowing, and on related matters such as scheduling, bifurcation and consideration and discovery control’. The Judge periodically ‘monitors’ the progress of the litigation to see that schedules are being followed and to consider necessary modifications in the litigation plan. The Judge may call for interim reports between scheduled conferences. But, at the same time, time-limits and the controls and requirements are not imposed arbitrarily or without considering the views of counsel, and are subject to revision when warranted by the circumstances. Once having established a programme, however, the Judge expects schedules to be met and when necessary impose appropriate sanctions for dereliction and dilatory tactics (Manual of Complex Litigation, 3rd, 1994, Federal Judicial Centre, Washington D.C., quoted in Lord Woolf’s Interim Report, Chapter 5, para 20).

In Canada, according to the Ministry of Attorney General Ontario, Canada, 1993 as quoted in Lord Woolf’s Interim Report, Chapter 5, Para 18, it is stated as follows:

“Case management is a comprehensive system of management of time and events in a law-suit as it proceeds through the justice system, from initiation to resolution. The two essential components of case-management system are the setting of a time table for predetermined events and suspension of the progress of the law-suit through its time-table”.

In Australia, Prof. Sallman of the Australian Institute of Judicial Administration (quoted in Lord Woolf’s interim report, Chapter 5, para 9) stated as follows:

“The Revolution has involved a dramatic shift from a laissez faire approach in conducting court-business to an acceptance by courts of the philosophical principle that it is their responsibility to take interest in cases from a much earlier stage in the process and manage them through a series of milestones to check-posts. Most courts have now acted upon this philosophy and introduced a variety of schemes, the common denominator of which is substantially increased court supervision and, in some instances, control … The essence of it is the adoption by courts of a systematic, managerial approach to dealing with case loads.”

(UK) Lord Woolf’s Reports on ‘Case Management’:

Lord Woolf’s ‘case management’ recommendations, to the extent relevant for us, are as follows:

(1) There should be a fundamental transfer in the responsibility for the management of civil litigation from litigants and their legal advisors to the courts;

(2) The management should be provided by a three tier system:

(i) an increase in small claim jurisdiction;

(ii) a new fast track for cases in the lower end of the scale; and

(iii) a new multi-track for the remaining cases

(3) The court shall have an enlarged jurisdiction to give summary judgment on the application of the claimant or defendant or an courts’ own initiation, on the ground that a case (or past of a case) has no realistic prospect of success.

(4) All cases where a defence is received will be examined by a ‘procedural judge’ who will allocate the case to the appropriate track.

(5) In the large court centers, Judges engaged on the management and trial of civil proceedings, should work in turns and normally a case should be handled only by members of the same team.

(6) The fast-track, which is primarily for cases where the value does not exceed 10,000 pounds, will have a set time-table of 20-30 weeks, limited discovery, a trial confined to not more than 3 hours and no oral evidence from experts; and would also have fixed costs.

(7) On the multi-track, case-management will usually be provided by at least two interlocutory management hearings; the first will usually be a ‘case-management conference’ shortly after the defence is received (usually conducted by the procedural Judge) and the second will be a pre-trial review (monthly conducted by the trial Judge).

(8) The multi-track cases will proceed according to the fixed time-table and initially to an approximate date of trial and subsequently to a fixed date of trial.

These recommendations were finalized in a very elaborate final report by Lord Woolf.

Objections to ‘case management’ and answers thereto:

In as much as it appears to us that the same objections are likely from the Bar and the Bench in India as in UK, we shall refer to them as raised in UK (see Section II, Chapter I of Lord Woolf’s final Report):

(a) The first objection was that the proposals will undermine the adversarial nature of the civil justice system;

(b) Judges are not well-equipped to manage;

(c) Reading the papers of the case, conducting conferences and pre-trial reviews, will add significantly to the burden of hard-pressed Masters and District Judges;

(d) It would also mean increase in the number of interlocutory hearings;

(e) More staff and sources will be necessary.

In reply to the above objectives, Lord Woolf pointed out that:

(a) the adversarial role will continue but will function in an environment which will focus on the key issues rather than allowing every issue to be pursued regardless of expense and time, as at present;

(b) there functions will not be performed by all Judges but only by procedural Judges (i.e. Masters and District Judge), although in complex cases, Civil Judges and High Court Judges will perform the tasks;

(c) Some steps indicated by the procedural Judges may be altered by trial Judges;

(d) All cases need not go through the system but cases will be selected for the purpose;

(e) There is need for training both Judges and staff;

(f) The proposals do add additional burden but the idea is to persuade parties to take to ADR systems in most cases, leaving complex cases alone for the courts;

(g) In several cases, the issues can be identified at an early stage and at the pre-trial review, and courts will try to minimize the time and expense;

(h) Case management hearings will then replace rather than add to the present system of interlocutory hearings;

(i) As agreed by the Bar Council and Law Society, additional staff and funds will be necessary;

(j) Counsel shall have to file statements as to submissions;

(k) Existing available resources have to be prioritized;

(l) Law clerks must be employed to help the Judge in these tasks;

(m) Increased use of information technology will help to release some staff for the other additional work.

Simple cases should be allocated to ‘fast track’ and complex cases to ‘multi-track’. However, some cases have to be excluded from ‘fast-track’.

Lord Woolf in his final Report recommended exclusion of the following cases from the ‘fast-track’, namely, suits:

(a) which raise issues of public importance; or

(b) which are test cases; or

(c) where oral evidence of experts is necessary; or

(d) which require lengthy oral arguments or significant oral evidence which cannot be accommodated within the fast track hearing time; or

(e) which involve substantial documentary evidence.

Transfer from ‘fast-track’ to ‘multi-track’, is also be permissible in appropriate cases.

The Australian Law Reform Commission (1997)

The Australian Law Reform Commission in a background paper called “Judicial and Case Management” (1999) has elaborately considered this subject.

It defines ‘Judicial Management’ as a term used to describe all aspects of judicial involvement in the administration and management of courts and the cases before them. It includes procedural activism by judges in pre-trial and trial process and in ‘case management’. At its broadest, it also encompasses questions of court governance and court administration. ‘Case management’ is defined as referring to process involving the control of movement of cases through a court or tribunal (case flow management) or the control of the total workload of a court or tribunal. Case management in courts is often, but not always, performed by Judges. When it is performed by Judges, it is referred to as ‘judicial case management’.

‘Case management’ means that the ‘progress of cases’ before the courts must be ‘managed, in one sense, its direction from traditional adversarial case management which had left the pace of litigation primarily in the hands of the legal practitioners. The courts’ role was simply to respond to processes initiated by practitioners. But, the objectives of new ‘case management’ include:

(a) early resolution of disputes;

(b) reduction of trial time;

(c) more effective use of judicial resources;

(d) the establishment of trial standards;

(e) monitoring of case loads;

(f) development of information technology support;

(g) increasing accessibility to the courts;

(h) facilitating planning for the future;

(i) enhanced public accountability;

(j) the reduction of criticism of the justice system by reason of perceived inefficiency (J. Wood, ‘The Changing Face of the Case Management: The New South Wales Experience, Paper, Aug. 1994)

M. Soloman & D. Somesflot in their ‘Case Flow Management to the Trial Court’ (American Bar Association, 1997) have identified the following aspects:

(a) judicial commitment and leadership;

(b) court consultation with the legal profession;

(c) court supervision of case progress;

(d) the case of standards and goals;

(e) a monitoring information system;

(f) listing for credible dates;

(g) strict control of adjournments.

It has been stated in the Report of the Commission that case flow management has helped bring about substantial procedural, operational and cultural changes in the judicial systems of Australia.

In our country, we have not had any specific rules of case-management where Judges monitor the movement of cases throughout its career in the Court or any system of different tracks. We have ad hoc systems improvised by each High Court but not a uniform system.

One of the main items which involve considerable waste of the judicial time of every trial Judge is the system of calling out all the listed cases – which are not yet ripe for final disposal – to find out whether (a) notices are served, (b) whether defects are cured, (c) whether affidavits, reply or rejoinder affidavits are filed, (d) whether notices in applications for bringing legal representatives or record are served, (e) whether parties have taken various steps necessary to be taken at various stages of the case. This part of the work, in several trial Courts, takes more than an hour of the Judge’s time. By the time regular work is taken up, the Judge loses the freshness of the morning and is already tired. We must dispense with this system and innovate a system in lieu thereof whereby this work is delegated to a senior ministerial officer or a court manager or another judicial officer who can take up this work on a Saturday in regard to the matters to be listed in the ensuing week before all the Judges in the particular Court. One or more judicial officers may do this work on behalf of all other judicial officers in regard to the lists of all of them. May be, some other alternative can also be found. In case, default order have to be passed, the matters can be listed before Court.

Nextly, let us examine the manner in which Judges in our Courts deal with the cases every day in the trial Courts. They first take up urgent interlocutory matters on the civil side and then take up the regular matters which are ready for final disposal. So far as the matters which are taken up for final disposal are concerned, they are normally listed according to the year in which the case was filed and numbered, the older cases being listed above the latter cases.

There is normally no distinction made in our Courts between simple cases, and medium or more complex cases. All of them are put in one basket and taken up according to their year and number. In this process, simpler cases which would not have taken much time get mixed up with every other type of case and linger on in the Courts for number of years. There is no reason why simpler cases should not be put on fast track as in other countries. Those cases which are not that simple can be put in a middle track and more complex cases can be put in the normal track.

The above exercise if done at an early stage of the filing of a case, the Judge and the lawyer can easily distinguish a case which is in one track from those in other tracks. Fast track cases which are simpler can be taken up on specified dates in a week or during a fortnight/month and disposed of early rather than being kept waiting according to their year of institution and number.

In the last two decades, fortunately we have followed the procedure of clubbing cases which raise same issues. This has resulted in grouping cases which are similar or connected and helped in their disposal in a block. This process must be continued with vigour. It would help if, when cases are filed in the Court, they are assigned a particular number or identity according to the subject and statute involved and straightaway grouped by the computer. In fact, further sub-grouping is also possible. Formats must be devised which lawyers have to fill up at the time of filing of cases, so that it will be easy for the registry to group the cases. Government pleaders’ offices can also be compelled to store information in their registers or computers, stating under which statute each case falls or as to the point it raises and the Government lawyers can be frequently asked to come out with the list of cases which belong to the same category. Cases raising the same point, when they start in any Court, must be first listed for early hearing and disposed of before the flood actually invades the Court. The tendency to allow such batch-cases to accumulate into hundreds should be deprecated.

Every High Court could have a small department of experienced officers who can be asked to

(1) take up the old cases and find out why they are not ripe, what defects have to be cured, or why parties are not served with notices or why legal representatives are not brought on record or why paper books have not been filed by the counsel;

(2) club cases into groups and sub-groups containing identical issues;

(3) prepare a brief resume of the facts and the issues raised.

It is time counsel are required to file written submissions before making their oral submissions. With increase in number and inadequate Court strength, this system has been introduced in several countries to save time. If both sides are required to file their written submissions in advance, it will first compel the counsel to read the facts and case law thoroughly at home before the oral submissions are made, and it will enable them to focus on the real issues arising. The Judges can read these submissions before the oral arguments are heard and this helps in shortening the time for oral arguments. The argument that with written submissions being filed, advocacy as an art will die is not acceptable. Even after written submissions are filed, the lawyer need not read it. He can still argue to explain the submissions given in writing. In fact, greater skills are required to put the points in a nutshell. Those who are accustomed to diffused arguments will now be required to practice the art of brevity and clarity.

Case Management systems are many and can be innovated by every Court or by every Judge. But at least some of them can be and have to be standardized so that they are invariably followed. In several countries, the rules of Court or practice directions limit even the time for oral arguments. We have not gone that far. For the present, if written submissions are filed before oral submissions are made, there can be substantial saving of time. As of today, counsel try to develop the case in Court after hearing the opposite side and after hearing the reaction of the Judge. In view of the heavy pendency of the cases, it is necessary to make suitable changes in this behalf.

Yet another important aspect which is now very important is the one relating to ‘costs’. In our country, the Courts do not award costs to the successful party in most cases. Every Judge says that “in the circumstances of the cases, the parties shall bear their own costs”. In fact, no circumstances are ever mentioned. Time has come when the Court must make a positive order on the principle that costs follow the event and where costs are not awarded, the Court must assign valid reasons. The tendency of the Courts not to award costs has encouraged several litigants to abuse the legal process and delay the disposal of cases. In fact, whenever a party is found to have deliberately delayed the legal process he must be asked to pay compensatory costs or exemplary costs. In several countries, heavy costs are awarded against the unsuccessful party and such a procedure has been a serious deterrent against the institution of unreasonable and frivolous cases or raising such defences. It is time, the Courts start imposing heavy costs in deserving cases.

Court management has various aspects some with which we are familiar and are implementing, some with which we are familiar but not implementing and some with which we are not familiar. Case management and allocating cases to different tracks and deciding simpler cases early is one which we have not yet started practising. If Case Management is introduced by appropriate rules, it can surely become a very efficient tool for the proper and timely disposal of simpler cases and also for the purpose of allocating more time to complex cases.

Dame Hazel Genn warns of ‘downgrading’ of civil justice

Mediation ‘is not about just settlement’, said Professor Dame Hazel Genn earlier this month. ‘It is just about settlement.’

This pithy attack on received wisdom aptly summed up three excoriating Hamlyn lectures in which the professor of socio-legal studies at University College London stripped away some of the comfortable assumptions that have surrounded English civil justice for more than a decade.

No wonder one of her colleagues, after hearing her first talk, expressed surprise at such forthright remarks from someone who normally steers clear of ‘political’ comments. Dame Hazel’s lectures attacked what she saw as the downgrading of civil justice, the degradation of civil court facilities and the diversion of cases to private dispute resolution.

She recalled a speech in 2000 by Baroness Scotland in which the Attorney General – at that time a minister in the Lord Chancellor’s department – had enthusiastically promoted the benefits of alternative dispute resolution (ADR). Judges should not be asking whether a case was suitable for diversion to ADR, Lady Scotland had said – the question they should be asking was why the case was thought suitable for adjudication.

Perhaps everything can be mediated, Dame Hazel commented tartly, and the courts can all become pubs and restaurants. But why would any defendant mediate if there were no courts to enforce a settlement or impose a ruling?

It was all the fault of Lord Woolf, Dame Hazel suggested. Supporters of ADR had enjoyed little success, even in the commercial field, until the then Master of the Rolls published his much-heralded review of civil justice in 1996.

As part of his research, Lord Woolf had travelled to the US, Canada and Australia, becoming convinced of the value of mediation as an essential element in reforming justice. The fundamental premise of his interim report, said Dame Hazel, was that all cases should be settled as soon as possible, and ADR should be tried both before and after the issue of proceedings in order to achieve this.

His final report was even firmer. It led, in turn, to the new Civil Procedure Rules – the so-called Woolf reforms. Their introduction 10 years ago was the single greatest change to civil procedure in England and Wales since 1883.

Lord Woolf had called his report Access to Justice. ‘Some commentators have argued that the purpose of the reforms was to provide more access and less justice,’ Dame Hazel pointedly observed. But modern civil justice reform was neither about more access nor more justice, she maintained. It was simply about diversion.
‘The push for less law is supported by the growing ADR profession which professes a mission to rid society of conflict but which is more interested in the profits to be made from large commercial dispute settlement than the small change of the county courts,’ she said.

Not that she was totally opposed to ADR. It was ‘an important supplement to courts that should be made available to anyone contemplating litigation’. But it had been used as an excuse to save public money.

In response to greater spending on the criminal courts, ministers had looked for savings in civil justice. That had been achieved by ‘diversion of cases away from public courts and into private dispute resolution, stripping down court procedure and making litigants pay for court buildings, judges and the administration through full-cost fee-recovery’.

But court-users had not rushed to embrace ADR in the five years following Access to Justice. Like the horse that wouldn’t drink, litigants ‘mulishly’ rejected the courts’ encouragement.

‘It was therefore time for the judicial big guns to step in. Beginning in 2002, a series of landmark decisions were handed down from the Court of Appeal and High Court underlining the importance of ADR.’ In one case, a winning party that had refused to consider mediation was refused its costs.

‘The high-water mark in the line of cases came in May 2003 when the High Court decided that the fact that a case involved a point of law did not make it inherently unsuitable for mediation, a decision that was warmly welcomed by mediation organisations.’

The tide turned in 2004, Dame Hazel said, when the Court of Appeal held in a case called Halsey that compulsory ADR would amount to an unacceptable constraint on the right of access to the court, breaching the right to a fair trial. But the court’s comments on compulsory ADR were non-binding obiter dicta, according to the Master of the Rolls. ‘Despite the Halsey decision it is at least strongly arguable that the court retains a jurisdiction to require parties to enter into mediation,’ Sir Anthony Clarke told a conference in May.

At a conference this month organised by the Oxford University law faculty and sponsored by Herbert Smith, Sir Anthony found himself listening to another attack on the Woolf reforms – this time from Professor Michael Zander QC, a consistent critic from the start. Far from costs having been reduced by the reforms, said Zander, they had gone up. And there had been a significant increase in inconsistent judicial decision-making.

Lord Woolf seemed to agree. ‘The situation in regard to costs is worrying,’ he said in a message to the conference. ‘Are we unnecessarily restricting the discretion of the case-managing judge? Are we giving unnecessary scope to tactical advocacy?’

Though far from perfect, he still regarded the Civil Procedure Rules as ‘fit for purpose’. Dame Hazel Genn, by contrast, believes we have neglected the role of judicial decision-making in supporting social and economic order. Her Hamlyn lectures will be published by Cambridge University Press in the spring. I can’t wait for Lord Woolf’s review.

THE WOOLF REFORMS – LECTURE 3

PRE ACTION PROTOCOLS

•Anecdotal evidence suggests that pre-action protocols are working well to promote settlement before issue and to reduce the number of ill founded claims.

•Early indications show that the introduction of Pre-Action protocols has been key in encouraging a new settlement culture. A survey of their members by the Association of Personal Injury Lawyers of their members showed that 48% of respondents felt that earlier settlement had been reached and 33% of cases avoided litigation.

LITIGATION WILL BE LESS ADVERSARIAL AND MORE CO-OPERATIVE
(Part 36, ADR and Single Joint Experts.)

•There is evidence to show that settlements at the door of the court are now fewer and that settlements before the hearing day have increased.

For ‘fast track’ cases, shown in Figure 6 the proportion of settlements or withdrawals before the hearing day has risen from 50% (July 1998-June 1999) to 70% (November 1999-December 2000). In addition, the proportion that was heard fell from 33% to 23%.

•Stuart Farr, a member of Martineau Johnson’s commercial litigation department said: “Lawyers are now being involved by clients earlier in an effort to avoid litigation”. •In a survey conducted for Lovells, a city law firm, 71% of respondents said they were now treating litigation as a last resort. •Fewer frivolous cases – John Taylor, a senior clerk at Old Square Chambers, Bristol notes: “We’ve noticed that the quality of PI [Personal Injury claims] has improved since Woolf as we’re now beginning to be used by more defendants”. 

For ‘multi-track’ trials, in Figure 7 the change is less marked, with the settlement rate before the hearing day at 63% in July 1998-July 1999 and 72% in November 1999-December 2000.

 •This view is endorsed in the anecdotal evidence. Andrew Horrocks, writing in The Times noted, “Our experience confirms that more cases are settling and faster, with fewer preliminary court applications”

 

PART 36

 

•Part 36 has been welcomed by all interested groups as a means of resolving claims more quickly. Although offers to settle can be made at any time during proceedings, there is a widespread belief that they are used in the early stages of a claim so that a trial may be avoided.

•In the CEDR Civil Justice Audit 74% of external lawyers (those not practising in a firm which dealt with its own litigation) felt that Part 36 made settling cases easier. •Freshfields also note that “….. the preliminary indications are that Part 36 offers are being made in practice on a regular basis (particularly by claimants).”

•Furthermore, Freshfields acknowledge that: “Evidence suggests that pre-action offers are being widely used by both potential claimants and potential defendants”

•This suggests that there is more conciliatory behaviour on the part of solicitors.

•David Marshall, treasurer of APIL and a partner at Anthony Gold Lerman and Muirhead commented: “[Part 36 offers] are a success story”

•Although in the same article Robin Knowles QC stressed the need for care saying: “…there is a difference between creating a climate where a disciplined and sensible approach by parties towards settlement is encouraged, and creating a climate which creates undue pressure to settle regardless of merits.”

ADR

•There has been a rise in the number of cases in which Alternative Dispute Resolution is used, suggesting that since the introduction of the Civil Procedure Rules, parties are more likely to try alternative 

 

•Alternative Dispute resolution can be undertaken at any time once a dispute has arisen and the pre-action protocols encourage the use of ADR before a claim is issued. The introduction of the Civil Procedure Rules has raised the profile of ADR. Once a claim is issued, ADR is most likely to be encouraged by the courts at the allocation stage, case management conferences and pre-trial reviews. The court may of its own initiative stay the timetable to allow parties to try to settle the case by ADR or by other means. Although there appears to be a growing interest in ADR, there is a clear view that it should not be made compulsory. means of settling claims.

•Since the introduction of the Civil Procedure Rules, CEDR has recorded a 141% increase in the number of commercial mediations.

•Over 130 ADR orders were made in the Commercial Court between 26 April 1999 and June 2000 compared to 43 in the preceding 12 months.

•Gary Webber, a barrister at 33 Bedford Row described his experiences of mediation in the Solicitors’ Journal noting that: “ADR has been around a long time and recent surveys have shown that it is increasingly being used. However, it is still seen as trendy and people are not convinced that it works. It does. Try it.”

•Freshfields comments that: “…the take up for ADR remains relatively low in comparison with  

SINGLE JOINT EXPERTS

•The use of single joint experts appears to have worked well. It is likely that their use has contributed to a less adversarial culture, earlier settlement and may have cut costs.

•In 2000 36% of trials involved expert witnesses, but only 22% involved expert witnesses instructed by one party, compared with 25% of trials where expert witnesses appeared in 1997 (all expert witnesses being assumed to have been instructed by one party pre CPR).the number cases proceeding through the courts”. 

•Post CPR, joint expert witnesses were used in 41% of cases involving any expert witnesses, with only one case involving additional expert witnesses.

 

•Anecdotal evidence appears to confirm this trend, which has also been endorsed by the experts themselves. Judge William Rose, writing in the JSB Journal noted that: “the shifting of the expert’s duty from his client to the court cannot but save time and costs. “He further commented: “My discussions with experts lead me to believe that…the reforms are broadly welcomed”.

•District Judge Wyn Rees outlined the changes and the differences with the earlier system. “The acceptance of single joint experts, of written questions being put to experts and, where there are separate experts, imposing the requirement that experts discuss the issues arising from their reports and prepare schedules of the issues which they agree and those upon which they disagree with reasons for any disagreement, and the court’s permission being required to enable a party to use the written or oral evidence of an expert is leading to a great deal of expert evidence being agreed and that, in turn is also contributing to earlier settlement or resolution of claims. The change of culture that has taken place in relation to expert evidence may be appreciated when one recalls that at a meeting of expert witnesses…about two years before the Civil Justice Reforms were introduced, one expert recounted his experience of attending court to give evidence and not being shown the report of the expert instructed by the other party until the day of the trial. The Civil Justice Reforms have put an end to those experiences.”

•However, there is a note of caution from Freshfields, whose clientele may not be typical, as to whether the changes made to expert witnesses will indeed bring down costs. “Lord Woolf’s recommendation that single joint experts be used where possible was intended, at least in part, to save costs. In practice this may not happen as parties are likely to appoint their own experts to shadow the single joint expert”.

•In an article on ‘The Impact of the Woolf Reforms’ by M R Macnicol for the British Orthopaedic Association Newsletter, based on a questionnaire of their members, the author notes: “Several fellows have written in to confirm that the new Civil Procedure Rules are proving effective and the number of reports undertaken seems unaffected, half of the respondents reporting no change, one quarter an increase and one quarter a decrease. Despite a longer preparation time per report the provision of expert opinion continues much as before”.

•Participants in the CEDR focus group in their survey commented: “The employment of a single expert often leads to a prompt settlement.”

•Generally, the change to a single joint expert appears to have worked well. Although there may be some doubt about the cost if parties do appoint their own experts the single joint expert seems to lead to settlement and a less adversarial approach.

LITIGATION WILL BE LESS COMPLEX
(Civil Procedure Rules and case management.)

•The number of ways of commencing a case has been greatly reduced. The plethora of initial documents: Default Summons, Fixed Date Summons, Writ, Originating Application and Originating Summons are being done away with. In October 2001, when the new Civil Procedure Rules on Housing come into force, the many different ways of commencing a claim for possession will be replaced by a single form of claim.

•Case management

•Case Management Conferences are a key factor in making litigation less complex, and appear to have been a success.

•Lord Woolf also saw litigation being simplified by the introduction of case management by the court, with the court being able to strike out issues or whole claims where there is no real prospect of success and controlling discovery.

•There is some evidence to show that the courts are taking responsibility for case management and utilising the provisions for case management conferences. As Lord Woolf himself noted: “The conference is a significant opportunity to take important decisions about a case, including the possibility of settlement or referring the dispute to ADR, and to consider the costs so far and the estimate of the future costs. The client must be enabled to know what has happened and be involved in the decisions about the future of the action.”

•The data show a higher proportion of cases with case management hearings than with applications for directions or case progression, 60% in 2000 compared with 43% in 1997.

•As Philip Kabraji, head of forensic services at accountants Grant Thornton has commented: “Litigation is being speeded up. Because of case management conferences there is a lot of direction, a lot more than there used to be, and pleadings and expert reports and witness statements are more or less consecutive. There are no delays now whereas before there used to be a lapse of several months between pleadings and witness statements being issued.”

•However, there is criticism from the Lovells survey that courts may not monitor the progress of cases and chase up deadlines.

 

Professor Zander QC. in a Modern Law Review article he states,

•“Judicial case management] massively increases discretionary decision making by judges. This will mean a consequential massive increase also in inconsistent judicial decision.”

•Professor Zander expands on this theme in his 1999 Hamlyn Lectures :-

“The problem of inconsistency of approach by the judges creating unfairness applies equally to a whole raft of new discretions given to the judges by the new rules. Under Lord Woolf’s judicial case management, the judge who is managing the case knows only what is presented to him by the parties. He has to make snap decisions based often on inadequate information. Inevitably, through no fault of his, he will sometimes make decisions that are unwise or inappropriate. But it will be difficult to appeal such discretionary decisions since the appeal courts, understandably, will not want to second-guess the procedural judge ……So the move to judicial case management not only greatly increases the risk of inappropriate decisions resulting from the judge’s lack of familiarity with the case, but equally increases the volume of low-level, inconsistent discretionary decisions that are in practice unappealable. That again seems to me a step backward for fairness.”

THE TIMESCALE OF LITIGATION WILL BE SHORTER AND MORE CERTAIN
(The time between issue and hearing)

•The time between issue and hearing for those cases that go to trial has fallen. The time between issue and hearing for small claims has risen the introduction of the Civil Procedure Rules.

•Lord Woolf envisaged a system where cases would be conducted in a quicker time frame and the Fast Track was introduced with a 30 week time period from issue to trial. Lord Woolf also wanted litigants to know what events would take place during this time period and when they would occur. A key to reducing the timescale of litigation is case management in Fast and Multi-Tracks.

•Data from the Trial Sampler data shows that the average time from issue to trial was lower after the introduction of the new rules; 522 days in 2000 compared to over 600 days between 1994 and 1997 as shown in the table below. While it is not certain that this drop should be attributed to the Civil Procedure Rules, it is very likely. Furthermore, 44% of cases took less than 1 year to go from issue to trial in 2000 compared with an average of 30% across the whole period.

The greatest decrease in average time from issue to trial between 1997 and 2000 occurred amongst claims of £5000 or more.

•The average time of unspecified claims fell from 674 (which was close to the average between 1994-97) to 537 days, while that of claims £5000 or more fell from 744 to 450 days and there was a significant decrease in claims where the value was unspecified at issue.

•Anecdotal evidence on the setting of trial dates confirms these statistics. Lovells, in their survey found that litigation is now quicker with 66% of respondents saying that judges now set tighter timetables. Furthermore, “two-thirds “rubber-stamped” joint requests by the parties to move back dates in the time table, but this flexibility did not extend to trial dates”.

•His Honour Judge Holman, in his article for the JSB Journal writes: “There is the occasional case where the solicitors carry on at their own pace ignoring the timetable set by the court but this is rare and generally the approach of the profession has been excellent.”

 

THE COST OF LITIGATION WILL BE MORE AFFORDABLE, MORE PREDICTABLE, AND MORE PROPORTIONATE TO THE VALUE AND COMPLEXITY OF INDIVIDUAL CASES

 

•It is clear that the introduction of pre-action protocols has resulted in the front-loading of costs before proceedings are issued. However, with fewer cases being issued, overall costs may have decreased. Practitioners believe that there are benefits for their clients who can now make better assessments on whether they wish to pursue their claims or how they would like to deal with them.

•The situation on the cost of litigation is difficult to prove. The landscape of litigation after the introduction of the Civil Procedure Rules has not been stable enough to provide a definitive view. There is a danger that evaluating the effects of the reforms on costs too early will mean the result will be skewed as the longest running cases that were issued before the April 1999 will not have been completed. Furthermore, there is a wide range of practitioners and businesses which participate in civil litigation and gaining access to files is a difficult issue, particularly with regard to confidentiality.

•There are a number of views on the subject of costs. The principal criticism is that costs may have increased due to front-loading. However, this is balanced somewhat by the requirement to explain the likely costs before a case proceeds to trial.

•”There is less litigation than there used to be. The disadvantage [of Woolf] is that the costs are up front. People who want to bring a claim know there is a huge expenditure that has to be made up front, whereas previously they could stagger the costs. That puts people off bringing cases because they have to put their money where their mouth is.”

•”More activity early on means more analysis and advice, so more costs at the outset”.

•Ted Greeno, a partner at law firm Herbert Smith, claims companies face ‘more expensive litigation with less certain outcomes’.

•”The costs of preparing the documentation needed for the case management conference in particular can be high, and the time spent on case budgets and costs has not always delivered tangible benefits for the client (although it is likely to prove beneficial in the longer term).”

•”I readily accept however, that costs may often be incurred at an earlier stage rather than later stage, but it is the greater understanding that those early costs achieve (rather than the costs themselves) that can promote settlement.”

The Centre for Dispute Resolution Civil Justice Audit contains the results of a poll of lawyers. 38% of external lawyers (working for firms providing legal services) said that front-loading has had an effect on their willingness to issue proceedings and the focus group comments were generally positive.

•There has also been much discussion around summary assessments of costs. Writing in Legal Action, Suzanne Burn believes the summary assessment to be a ‘lottery’. Commentators are unsure as to whether the costs are fair and how difficult it is for judges to make an informed assessment.

•”Reaction to the implementation of the summary assessment provisions has been mixed, but they do appear to be discouraging peripheral applications and thereby contributing to more proportionate costs overall.”

 

 

PARTIES OF LIMITED FINANCIAL MEANS WILL BE ABLE TO CONDUCT LITIGATION ON A MORE EQUAL FOOTING

•The views of litigants in person are difficult to obtain as they tend to use the system only once. Whilst research is currently being undertaken to assess their views, anecdotally it appears that courts are providing the assistance require.

•Anecdotally there is some criticism that the system is more favourable to litigants in person than to those who have engaged professionals. However, as one article notes: “The legal professionals might complain if too much help is given to litigants in person but if the aims are to ensure access to justice and equality, then something has to give”.

•There is great difficulty in finding the views of litigants in person. They tend to only use the system once and in order to find those who have used the system a very large sample size must be used. Furthermore, they are unlikely to have used the system both before and after the introduction of the civil procedure rules.

•The experiences of litigants in person are an important part of the Access to Justice recommendations. Through repeating some of the earlier surveys done during “Paths to Justice” and seeking the views of those who use the courts, it should be clear whether Lord Woolf’s reforms have had a direct impact on litigants in person. This should extend to those who sought a different way of resolving their dispute. It appears anecdotally that courts are assisting litigants in person.

OVERALL

•With one or two exceptions the civil justice reforms have overall been well received.

•Wragge and Co, in their survey of Legal Heads of FTSE 1000 companies showed that 89% of respondents were in favour of the reforms. The majority of those surveyed welcomed earlier disclosure, greater co-operation and faster resolution of claims. The shift from the old culture to the culture that Lord Woolf envisaged of a more co-operative, less adversarial style of civil litigation was not regretted.

The Centre for Dispute Resolution conducted a MORI poll of practitioners.  Shows there was an 80% level of satisfaction amongst respondents to their survey. Amongst the changes noted and welcomed were the reduction in litigation, speedier resolution and judicial case management.  

•The view of practitioners and judges, with a few exceptions, is that the Civil Procedure Rules are working well. There are specific areas singled out for praise in the surveys, such as the change in culture from an adversarial climate to a more co-operative climate and a reduction in litigation.

•Although there is criticism from some quarters about litigation becoming slower and more costly, this is not felt by the majority of those who have expressed an opinion. Both judges and lawyers are in favour of the changes. Attempting to change many of the most significant features and the culture of the civil justice system is a huge task and it would be surprising if everything worked well from the start.

 

THE WOOLF REFORMS – LECTURE 2

“The key problems facing civil justice today are cost, delay and complexity. These three are interrelated and stem from the uncontrolled nature of the litigation process. In particular there is no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts.” – Lord Woolf in the Access to Justice Interim Report.

The White Paper “Modernising Justice” announced substantial changes to the civil justice system introduced in April 1999.

Lord Woolf described the new landscape of civil justice as having the following features:

•Litigation will be avoided wherever possible.

•Litigation will be less adversarial and more co-operative.

•Litigation will be less complex.

•The timescale of litigation will be shorter and more certain.

•The cost of litigation will be more affordable, more predictable, and more proportionate to the value and complexity of individual cases.

•Parties of limited financial means will be able to conduct litigation on a more equal footing.

THE REFORMS

•(a) The Unified Code of Procedural Rules – this replaces the separate High Court and County Court Rules. The new rules came into effect on the 26th April, 1999. The rules apply to civil courts ending the distinctions in practice and procedure between the High Court and the County Court. Plain English has been adopted throughout the rules which means that must of the existing terminology (complexity) will disappear.  

•(b) Actions are now commenced by a ‘claim form’ and the person commencing the action is the ‘claimant’, rather than the ‘plaintiff’.  

•(c) The rules have an ‘overriding objective of enabling the court to deal with cases justly’. As a part of this objective judges are expected to actively manage cases. According to Part 1 dealing with cases justly, includes so far as it is practicable:

- Ensuring the parties are on an equal footing

- Saving expense

- Dealing with cases in ways which are proportionate to the amount of money involved, importance of the case, complexity of issues, and financial position of each party

•(d) Ensuring that it is dealt with expeditiously and fairly  

•(e) Allotting to it and appropriate share of the court’s resources, while taking into account the need to allocate resources to other cases.  

•(f) Pre action protocols – the new procedure include pre action protocols for personal injury claims and for the resolution of clinical disputes. The purpose is to improve the exchange of information between parties and facilitate early settlement of claims. They also encourage ‘good litigation and pre-litigation practice’.

Before a claim is issued, claimants must write to defendants informing them that they intend to pursue a claim. They are then expected to begin following the pre-action protocol. Claims should not be issued until a minimum of three months after a letter of claim has been sent.

Additionally, the settlement culture is encouraged by Part 36.  Part 36 offers were introduced on 26 April 1999. Part 36 enables the claimant as well as the defendant to make an offer to settle. This offer to settle can be made before the claim is issued or during proceedings. If the claim proceeds to trial, then any offer made by either party will be taken into account when it comes to awarding costs.

•(g) The 3 track system for civil cases – the track is based on the value and complexity of the case.  

- A small claims track – for cases up to L5,000. These cases are dealt with informally by a District Judge in the small claims procedure. Personal injury and housing cases up to L1,000 only will be dealt with under the small claims track.  

- A fast track – for cases between L5,000-L15,000. These will be dealt with under a fixed time table and with simplified procedures. Trials will last normally no more than half a day.  

- A multi track – for cases over L15,000, which are usually complex. These cases will be case managed. 

(h) Alternative Dispute Resolution – Lord Woolf also stressed the importance of litigants exploring alternative ways of resolving disputes before turning to the courts. Mediation is now being explored as a method of ADR. In order to encourage parties to seek mediation, the Legal Aid Board announced in November 1998, that assisted parties could recover the costs of mediation. ed by judges.

The Key Reform Strategies

•(i) There is a fundamental change in that now the resposibility for case management is with the courts and not the litigants or their lawyers. 

•(ii) There is a unified set of rules for both the High Court and the County Court, resolving much of the earlier complexity. 

•(iii) There is a single claim form for all types of proceedings, which can generally be issued from any court. 

•(iv) There is a reduction in the technicalities in the proceedings. 

•(v) Either side can offer to settle the case – this is to encourage and facilitate out of court settlement.

Zander’s Attack

•(i) Professor Michael Zander has criticised the new Civil Procedure reforms. He argues that at the heart of the Woolf reforms is case management. The American experience (where case management has been used for some time now) shows that case management does not necessarily lead to savings in terms of time and by contrast has raised the costs of litigation. 

•A study done by the Institute of Civil Justice and the Rand Corporation in  California of 10,000 cases in Federal Courts drawn from 16 states, shows that cases management had little effect of the time it took to settle cases. They however significantly increased costs to litigants because case management tends to increase rather than reduce the work done by lawyers.

•(ii) Zander also argue that the delay in the civil justice system is not caused largely by its adversarial nature. He refers to a study done by KPMG Peat Marwick, which identifies 7 causes for delay:

(a) the nature of the case  

(b) delay caused by the parties  

(c) delay caused by their representatives  

(d) external factors, such as difficulty getting experts’ reports

(e) the judiciary

(f) court procedures  

(g) court administration

•However, lawyers playing the adversarial game is not one of the factors.

EVALUATION

•LITIGATION WILL BE AVOIDED WHENEVER POSSIBLE (Fall in claims and pre-action protocols.)

•Overall there has been a drop in the number of claims issued, in particular in the types of claim where the new Civil Procedure Rules have been introduced.

Figure 1 shows that there was a peak early in 1999 and then a large drop in claims issued immediately after the introduction of the Civil Procedure Rules. Although numbers of claims have since risen, the overall trend remains at a lower level than before.

Figure 2 shows a similar peak before the introduction of the Civil Procedure Rules and a significant fall after that date.

Figure 3 combines the data from the previous two and shows that the overall number of claims fell to a new level after April 1999.

 

To test whether this fall can be, at least in part ascribed to the civil justice reforms, we have compared different types of claim.

Figure 4 shows the pattern of issue in the county courts for claims in contract and tort such as debt, personal injury and other forms of negligence for which the Civil Procedure Rules have introduced new procedures.

Figure 5 shows the pattern of issue of claims in other types of case and shows no overall decline.

•Stuart Farr, a member of Martineau Johnson’s commercial litigation department said: “Lawyers are now being involved by clients earlier in an effort to avoid litigation”.

•In a survey conducted for Lovells, a city law firm, 71% of respondents said they were now treating litigation as a last resort.

•Fewer frivolous cases – John Taylor, a senior clerk at Old Square Chambers, Bristol notes: “We’ve noticed that the quality of PI [Personal Injury claims] has improved since Woolf as we’re now beginning to be used by more defendants”.

Pre Action Protocols

 

•Anecdotal evidence suggests that pre-action protocols are working well to promote settlement before issue and to reduce the number of ill founded claims.

•Early indications show that the introduction of Pre-Action protocols has been key in encouraging a new settlement culture. A survey of their members by the Association of Personal Injury Lawyers of their members showed that 48% of respondents felt that earlier settlement had been reached and 33% of cases avoided litigation.

 

 

LITIGATION WILL BE LESS ADVERSARIAL AND MORE CO-OPERATIVE
(Part 36, ADR and Single Joint Experts.)

•There is evidence to show that settlements at the door of the court are now fewer and that settlements before the hearing day have increased.

For ‘fast track’ cases, shown in Figure 6 the proportion of settlements or withdrawals before the hearing day has risen from 50% (July 1998-June 1999) to 70% (November 1999-December 2000). In addition, the proportion that was heard fell from 33% to 23%.

For ‘multi-track’ trials, in Figure 7 the change is less marked, with the settlement rate before the hearing day at 63% in July 1998-July 1999 and 72% in November 1999-December 2000.

0

•This view is endorsed in the anecdotal evidence. Andrew Horrocks, writing

in The Times noted, “Our experience confirms that more cases are settling and faster, with fewer preliminary court applications”

 

Part 36 

 

•Part 36 has been welcomed by all interested groups as a means of resolving claims more quickly. Although offers to settle can be made at any time during proceedings, there is a widespread belief that they are used in the early stages of a claim so that a trial may be avoided.

•In the CEDR Civil Justice Audit 74% of external lawyers (those not practising in a firm which dealt with its own litigation) felt that Part 36 made settling cases easier.

•Freshfields also note that “….. the preliminary indications are that Part 36 offers are being made in practice on a regular basis (particularly by claimants).“

•Furthermore, Freshfields acknowledge that: “Evidence suggests that pre-action offers are being widely used by both potential claimants and potential defendants”

•This suggests that there is more conciliatory behaviour on the part of solicitors.

•David Marshall, treasurer of APIL and a partner at Anthony Gold Lerman and Muirhead commented: “[Part 36 offers] are a success story”

•Although in the same article Robin Knowles QC stressed the need for care saying: “…there is a difference between creating a climate where a disciplined and sensible approach by parties towards settlement is encouraged, and creating a climate which creates undue pressure to settle regardless of merits.”

Natural Law and the Decline of Natural Law

What is Natural Law?

•Universal and immutable law.

•Principle claim: what naturally is, ought to be.

•Derived from what is natural or in accordance with the natural order.

•Discoverable by reason.

•But it has taken on different forms its more then 2500 history.

What is positivism?

  •Doctrine about the nature of law according to which:

(a) all laws are laid down or posited by a certain person or procedure, and

(b) something counts as a valid law of a certain system in virtue of being laid down by a certain someone or according to a certain procedure.

•Therefore: the legal validity of a rule or decision depends on its sources (e.g. where it has come from, and how, and when), rather than its merits (e.g. whether or not it is a good rule or decision).

•There is no necessary connection between law and morals or law as it ought to be and law as it is.

•the nature of legal systems can be completely understood without reference to their having any intrinsic moral value, purpose, function or point.

How do they conflict?

•If ‘lex injusta non est lex’ [an unjust law is not a law] then this is in direct contradiction to the positivist idea of laws’ validity. 

•May disagree on how the nature of legal systems should be understood.

Do they conflict?

•No (Or at least not completely)! They may be trying to answer different questions.

•An important conceptual framework: Distinguishing between Normative and descriptive Legal Theories.

Cicero, De Republica,1st Century BC

“True law is right reason in agreement with nature, diffused among all men; constant and unchanging, it should call men to their duty by its precepts, and deter them from wrongdoing by its prohibitions; and it never commands or forbids upright men in vain, while its rules and restraints are lost upon the wicked. To curtail this law is unholy, to amend it illicit, to repeal it impossible,; nor can we be dispensed from it by the order either of senate or of popular assembly; nor need we look for anyone to clarify or interpret it; nor will it be one law at Rome and a different one at Athens, nor otherwise tomorrow than it is today; but one and the same law, eternal and unchangeable, will bind all people and all ages; and God, its designer, expounder and enactor, will be as it were the sole and universal ruler and governor of all things; and whoever disobeys it, because by this act he will have turned his back on himself and on man’s very nature, will pay the heaviest penalty, even if he avoids the punishments which are adjudged fit for his conduct”.

The fundamental tenets of what he is saying:

1. LAW has a divine origin and is superior to man made law.

2. This law is apparent to all intelligent people who have the capacity to reason.

3. This law is eternal and does not change over time. What is mala inse has been thus since time immemorial.

4. It is immutable and cannot be changed.

5. Lex injusta non est lex

St Thomas Aquinas   (1225 – 1274)

  •“Law is nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community…granted that the whole community of the universe is governed by Divine Reason. Therefore the very idea of the government of things in God the ruler of the universe, has the nature of a law. And since the divine reason’s conception of things is not subject to time but is eternal…therefore it is that this kind of law must be called eternal.”  – Summa Theologica

Natural Rights Theories

Hugo Grotius   (1583-1645)

  •In the early 17th century, he introduced the modern idea of natural rights of individuals.

•We each have natural rights which we have in order to preserve ourselves.

•He uses this idea to try and establish a basis for moral consensus in the face of religious diversity and the rise of natural science and to find a minimal basis for a moral beginning for society, a kind of natural law that everyone could potentially accept.

Thomas Hobbes (1588-1679)

•The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes. According to Hobbes in LEVIATHAN, the lives of individuals in the state of nature were “nasty, brutish and short”, a state where self-interest and the absence of rights and contracts prevented the ’social’, or society. Life was ‘anarchic‘. Individuals in the state of nature were apolitical and asocial. This state of nature is followed by the social contract.

John Locke (1632 – 1704)

 

 

In his Second Treatise of Government (1689), John Locke produced a conception of the social contract which differed from Hobbes’ in several ways, but retained the central notion that persons in a state of nature would willingly come together to form a state. Locke believed that individuals in a state of nature would have stronger moral limits on their action than accepted by Hobbes, but recognized that people would still live in fear of one another.

•Locke argued that individuals would agree to form a state that would provide a “neutral judge”, and that could therefore protect the lives, liberty, and property of those who lived within it.

•Locke also believed that people will do the right thing as a group, and that all people have natural rights.

Jean-Jacques Rousseau (1712-1778)

In Du Contrat Social (1762), Rousseau famously declared,

‘Man is born free, yet he is everywhere in chains.’

•In his influential 1762 treatise, The Social Contract, outlined a different version of social contract theory, based on popular sovereignty. Although Rousseau wrote that the British were perhaps at the time the freest people on earth, he did not approve of their representative government. Rousseau believed that liberty was possible only where there was direct rule by the people as a whole in lawmaking, where popular sovereignty was indivisible and inalienable.

•The social contract can be reduced to the following terms: Each of us puts his person and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole.

In Discourse on Inequality, 1754, he says,

•“The first man who, having fenced in a piece of land, said “This is mine,” and found people naive enough to believe him, that man was the true founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.”

The American Declaration of Independence – 1776

“When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.   That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such a form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate, that governments long established, should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves to abolish the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

 

The French Declaration

•In the same way, the French National Assembly made a similar appeal in 1789 to “simple and indisputable” principles which showed that man had natural rights to “liberty, property, security and resistance to oppression”.

This formidable doctrine of Natural Law Declined. Why?

Niccolo Machiavelli (1469 – 1527)

Macchiavelli is renowned for his works, ‘The Discourses’ and ‘The Prince’.

•‘The Discourses’ advocated the idea of a republican government free from the shackles of traditional morality. He sought to argue that the state should be driven by ethical concerns free of traditional, Christian moral beliefs.

In the Prince, he said,

•‘Christianity placed supreme happiness in humility, lowliness, and contempt for worldly objects, whilst the religions of antiquity (or so Machiavelli argued) had stressed Grandeur of soul, strength of body, and various qualities which rendered men formidable. Christianity had made men feeble, causing them to become easy prey to evil-minded men: ‘we Italians owe it to the Church of Rome and to her priests our having become irreligious and bad…’

He then poses the great rhetorical question of all time,

•‘The question arises; is it better to be loved than feared, or vice-versa? I don’t doubt that every prince would like to be both; but since it is hard to accommodate these qualities, if you have to make a choice, to be feared is much safer than to be loved. For it is a good general rule about men, they are ungrateful, fickle, liars and deceivers, fearful of danger and greedy for gain. While you serve their welfare, they are all yours, offering their blood, their belongings, their lives, and their children’s lives…so long as the danger is remote. But when the danger is close at hand, they turn against you. Then, any price who has relied on their words and has made no other preparations will come to grief; because friendships that are bought at a price, and not without greatness and nobility of soul may be paid for but they are not acquired, and they cannot be used in time of need. People are less concerned with offending a man who makes himself loved than one who makes himself feared: the reason is that love is a link of obligation, which men, because they are rotten, will break any time they think doing so serves their advantage, but fear involves dread of punishment, from which they can never escape’

•Machiavelli thus concludes that law does not transcend the nature of man; it is a mere technique of ruling. Social relations are essentially defined by struggles for power;

 •‘There are two ways of fighting, one with laws, the other with force. The first is properly a human method, the second belongs to the beasts…a prince must know how to use both of these two natures, and that one without the other has no lasting effect’

David Hume (1711 – 1776)

In A Treatise of Human Nature, Hume argues that Natural Law theory derives an ‘Ought’ from an ‘Is’. That is to say that they talk as if all of this exists, only to assert eventually that it ought to exist. The natural law shift in the philosophical paradigm is therefore illogical, inexplicable and unacceptable.

Thus he says,

‘In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find that instead of the usual copulations of propositions, ‘is’ and ‘is not’, I meet with no proposition that is not connected with an ‘ought’ or an ‘ought not’. This change is imperceptible………  (I) am persuaded that this small attention would subvert all the vulgar systems of morality , and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects nor is perceived by reason’.

John Austin (1790 – 1859)

• In the Province of Jurisprudence Determined, John Austin famously says, “The most pernicious Laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as Laws by judicial tribunals, Suppose and act of innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the Law of God… the court of justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the Law which I have impugned the validity.  An exception, demurrer, or plea, founded on the Law of God was never head in a Court of Justice, from the creation of the world down the present moment.” 0

Immanuel Kant (1724 – 1804)

•‘The world that we encounter in ordinary experience is one in which we are faced with choices between ends equally ultimate and claims equally absolute, the realization of some of which must inevitably involve the sacrifice of others………..Nevertheless it is a conclusion that cannot be escaped by those who, with Kant, have learnt the truth that out of the crooked timber of humanity no straight thing was ever made’. – Isaiah Berlin (1909 – 1997) Two Concepts of Liberty

THE WOOLF REFORMS???

In his Access to Justice Findings, Lord Woolf identified the problems with the English Civil Justice system circa 1990 as follows:

1. Litigation was too expensive, in that costs often exceeded the value of the claim. Statistics put forward by the Civil Justice Review 1988, indicated that in the County Court the costs represented almost 100% of the amount of damages recovered by the litigants and at the High Court, it was about 25%.  The main be beneficiaries of the system therefore appeared to be the lawyers!

2. Litigation was too slow in bringing a case to a conclusion. Woolf attributed this largely to lawyer’s playing the adversarial game.

3. There was a lack of equality between litigants who are wealthy and those who are not. A system that was expensive and slow clearly favoured wealthier parties.

4. Litigation was too uncertain in terms of time and cost.

5. The system was incomprehensible to many litigants. The procedural rules were complex and there was a duality of procedure between the County Court and the High Court.

6. The system was too fragmented since there was no clear overall responsibility for the administration of civil justice. Judges did not have a clearly defined role to manage and expedite proceedings.

7. Litigation was too adversarial as cases were run by the parties and not by the courts with the rules all too often ignored by the parties and not enforced by the courts.

Lord Woolf argued that the principles that should underpin the civil justice system are:

1. The system should be just in the results it delivers.

2. It should be fair and be seen to be so by: –ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights; –providing every litigant with an adequate opportunity to state his own case and answer his opponent’s; –treating like cases alike.

3. Procedures and cost should be proportionate to the nature of the issues involved.

4. It should deal with cases with reasonable speed.

5. It should be understandable to those who use it.

6. It should be responsive to the needs of those who use it.

7. It should provide as much certainty as the nature of particular cases allows.

8. It should be effective: adequately resourced and organised.

The new landscape of civil litigation was to have the following features:

1. Litigation will be avoided wherever possible. The thrust of the reforms was aimed at reducing the absolute number of cases brought before the courts to a manageable level but changing the litigation culture. But imposing on the litigants an obligation to either settle cases which are straight forward or seek alternative dispute resolution (ADR).

2. Litigation will be less adversarial and more co-operative. By the introduction of case management, as well as, other pre action protocols – Woolf aims to promote a culture of getting to the crux of the issues rather than using procedural rules to delay and frustrate claims. The promotion of a system where parties use a single joint expert is also intended to achieve this result.

3. Litigation will be less complex. The basic idea is to simplify the procedures, so that self help is possible.

4. The timescale of litigation will be shorter and more certain. He hoped that case management would achieve this.

5. The cost of litigation will be more affordable, more predictable, and more proportionate to the value and complexity of individual cases.

6. Parties of limited financial means will be able to conduct litigation on a more equal footing.

His principal recommendations were that the following Key new features should be implemented into the system:

1. Pre-Action Protocols – to provide a clear framework for both parties to follow, to resolve or at least clarify a dispute before the issue of a claim.  Pre-action protocols in the areas of clinical negligence and personal injury cases came into force on 26 April 1999. There have since been others. Before a claim is issued, claimants must write to defendants informing them that they intend to pursue a claim. They are then expected to begin following the pre-action protocol. Claims should not be issued until a minimum of three months after a letter of claim has been sent.

2. Part 36 offers - Introduced on 26 April 1999, Part 36 enables the claimant as well as the defendant to make an offer to settle. This offer to settle can be made before the claim is issued or during proceedings. If the claim proceeds to trial, then any offer made by either party will be taken into account when it comes to awarding costs.

3. Single joint experts – to reduce costs and promote co-operation between the parties.  •  Lord Woolf argued that the use of experts was a major problem in the civil justice system. They contributed to the cost of litigation, increased the complexity and delayed the proceedings, all of which were against the spirit of his recommendations. He proposed that there be a single joint expert where possible and that the duty of the expert to the court should be emphasised. As a general principle, single experts should be used wherever the case (or the issue) is concerned with a substantially established area of knowledge and where it is not necessary for the court directly to sample a range of opinions. 

4. Case Management – to ensure cases are dealt with justly.  Lord Woolf also saw litigation being simplified by the introduction of case management by the court, with the court being able to strike out issues or whole claims where there is no real prospect of success and controlling discovery.

Defended cases would be allocated to one of three tracks:

(i) Small Claims Track – for personal injury cases up to £1,000 and all other cases up to £5,000. 

(ii) Fast Track – originally intended for cases above the small claims limit and not exceeding £15,000. Cases would be run according to fixed timetables leading to trial in 20-30 weeks to trial. The trial would be expected to last one day or less with limits on oral and expert evidence.

(iii) Multi Track – for cases over £15,000  and those cases which were too complex for the fast track. Case management by judicial teams would be a feature of the track and there would be either standard or tailor made directions as appropriate. 

Lord Woolf envisaged a system where cases would be conducted in a quicker time frame and the Fast Track was introduced with a 30 week time period from issue to trial. Lord Woolf also wanted litigants to know what events would take place during this time period and when they would occur. A key to reducing the timescale of litigation is case management in Fast and Multi-Tracks.

5. Costs – to increase certainty and proportionality, there would be fixed costs for cases on the fast track and the development of benchmark costs for multi-track cases. Costs orders were to better reflect the conduct of the successful party and the outcome of individual issues. Fixed costs were introduced for fast track trials

6. Rules – to reduce complexity there would be a single set of rules for the High Court and county courts.  Lord Woolf envisaged a system with a single set of rules for the High Court and county courts and all proceedings commenced in the same way by a claim with special rules for specific types of litigation kept to a minimum. This is now encompassed in the Civil Procedure Act 1997 and the procedures have been greatly reduced. The plethora of initial documents: Default Summons, Fixed Date Summons, Writ, Originating Application and Originating Summons are being done away with.

7. ADR – the use of Alternative Dispute Resolution would be encouraged.  ADR can be undertaken at any time once a dispute has arisen and the pre-action protocols encourage the use of ADR before a claim is issued. The introduction of the Civil Procedure Rules has raised the profile of ADR. Once a claim is issued, ADR is most likely to be encouraged by the courts at the allocation stage, case management conferences and pre-trial reviews. The court may of its own initiative stay the timetable to allow parties to try to settle the case by ADR or by other means. 

The real issue is whether the measure he introduced have achieved the objectives he set out.

This will be considered in the next article in this series.

LAW PROGRAMME AT STAMFORD COLLEGE

I am pleased to announce that with immediate effect I will be acting as consultant to the LLB programme at Stamford College, Jalan 223, Petaling Jaya.

In view of this, I am converting this blog into a legal issues blog and will be writing on topics relevant to law students.

I may digress from time to time – however, the bulk of the writing on this blog will be dedicated to academic views on a variety of law subjects. I shall also be inviting my friends from around the world to contribute to this blog, in an effort to create a world view on the subjects.

Please feel free to contribute your views and comments on any of the subjects.

Dr Siva Ananthan

 

 

 

 

 

What Rule of Law and Separation of Powers?

The written constitution of any democrartic country is underpinned by these fundamental doctrines. Be you never so high the law is above you – these words were famously uttered by Thomas Fuller. But the question that this necessarily begs is – What is above the law? Afterall in many countries the idea of an independant ideal of law is nonsense. Law is nothing more than the handmaiden of politics and we create wonderful institutions and devise elaborate rituals to mask this reality.

Wherein political power resides, therein lies the answers to all questions that have a legal-poltical character. It is useless to try an rationalise it in any other way. Law is ultimately a means to an end within most legal systems UNLESS judges perceive their roles as something distinct and independant from politics. Paying lip service to the doctrine of separation of powers and citing it to make decisions of a political character more palatable – is not what I mean by an independant judiciary.

“Judges rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times.” – Judge Warren E. Burger