SIVA-LIZATION

THE WOOLF REFORMS – LECTURE 2

Posted in Uncategorized by drsivalaw on December 1, 2009

“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 1

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

Figure 2

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.

Figure 3

 
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 4
Figure 5 shows the pattern of issue of claims in other types of case and shows no overall decline.
Figure 5
•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%.
Figure 6
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.
Figure 7
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.”
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