Posted in Uncategorized by drsivalaw on November 23, 2009

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.


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