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.
•(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.
•(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.
•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.
(Part 36, ADR and Single Joint Experts.)