Civil Justice System Reforms

Why has Lord Woolf’s reforms to the civil justice system not had its desired effect? - Justin Santiago

Lord Woolf’s reforms to solve the three main problems of the civil justice system namely cost, timeliness and complexity was the main thrust of the proposals. Broadly he set out to promote early settlement, better court management and unified procedures at the various court levels. These were incorporated into the Civil Procedure Act 1997 and the Civil Procedure Rules 1998.

However the problems in the civil justice system are inherent and are not going to go away simply because of Lord Woolf’s reforms. There has always been a desire to minimize the main deficiencies in the civil justice system namely delay, cost, complexity and access to justice. There have been no fewer than five reforms since the Second World War the Evershed Report in 1953, the report of the Winn Committee in 1968, the Cantley Working Party in 1979, the Civil Justice Revew in the late 1980s and then Lord Woolf’s reforms.

His attempt albeit one which tries to plug the leaks rather than replacing the plumbing has not had its desired effect.

Judicial Case Management (JCM) was one of the most significant of the reforms. The involvement of the courts in the active management of litigation away from the lawyers was designed to bring cases to trial quickly and efficiently by adhering to strict timetables. JCM also introduced the principle of proportionality where the financial and time resources of the courts are applied appropriately according to the small claims track, fast track or multi track depending on the financial value of the claim. Through this method of dividing cases into the three tracks and ensuring that the courts take an active role in efficiently allocating the cases to the correct court system, Lord Woolf hoped to ensure that trials were handled more quickly and efficiently.

It also introduced a new principle: proportionality. Not only should the time and money spent on a case reflect what was being litigated over, the resources of the courts should also be applied appropriately, taking into account other calls on the courts’ limited time and assets.

The oppositions to judicial case management tend to raise three objections – firstly that it requires judges to make snap decisions based on the stricter time tabling and an interventionist judge hastening the dispensation of justice. Secondly lawyers’ work actually increased as a result of having to respond to the court’s management directions and tended to increase rather than reduce cost. Thirdly it overestimates the judges time, skills or inclination to undertake the task of case management who will want to focus on delivering judgements instead of dealing with other matters.

However Professor Michael Zander explains in his 1999 Hamlyn Lectures that the judge has to make snap decisions based often on inadequate information. There may be problems if a fast track case takes longer than expected resulting in refusal to grant an extension of time which may cause injustice to one party or perhaps to both. Judges who have to ensure that court procedures are followed and to write their judgements may find a third task too heavy a burden.

Zander’s criticisms of the reforms however focused on the fact that they concentrated on the lawyers and courts when the real problem was with the litigious and compensation seeking culture of the English public. The problem with costs will also not go away as there will be front loading of fees by the lawyers and this may even act as a deterrent as litigants will need to come up with the money at a very early stage. There is still no sizeable decrease in delay as the courts are still under resourced in terms of manpower and technology.

Lawyer’s work actually increase as a result of having to respond to the court’s management directions and tended to increase rather than reduce costs. Multi track cases with two pre trial hearings will generate even more additional costs and this is reflected in front loading of costs which does not solve the problem of expensive litigation.

Pre Action Protocols were also proposed where there was a strict timetable for the exchange of documents and claims and encouragement of a culture of openness between the parties by having earlier and fuller exchange of information to facilitate pre-action investigation and to encourage early settlement.

However pre action protocols have also resulted in the front loading of costs. Some complex cases involve lengthy pre-action stages. The case of McGlinn shows that there is a potential irrecoverability of elements of pre-action costs if there are claims that are not subsequently pursued in the proceedings. It was decided that costs incurred at the pre-action stage which dealt with issues that are subsequently dropped cannot be considered costs incidental to the proceedings. This may deter litigants from doing all they can at the pre-action stage and may simply comply with the requirements of the Pre-Action Protocol by indulging in formalities.

In factually complex cases, the pre-action stage can be very time consuming and be extremely costly and as the decision in McGlinn shows, there is a potential irrecoverability of elements of pre-action costs if there are claims that are not subsequently pursued in the proceedings. This may deter litigants from doing all they can at the pre-action stage and may simply comply with the requirements of the Pre-Action Protocol by indulging in formalities only.

Professor Hazel Genn discussed the issue of who were the reforms supposed to benefit and her argument was that out of the many stakeholders in the civil justice system, the party which had the least to benefit were the litigants themselves.
Part of the problem was the retention of the adversarial system which was inherently unjust, inaccessible, inefficient, untimely and costly.

To tackle the root of the problem we would have to look into alternative ways to settle disputes rather than depending solely on adversarial trials. It would appear that the adversarial system goes against achieving the objectives of the civil justice system which was to provide for processes that were just, accessible, efficient, timely and effective. The motivation for having such a platform is clear enough : to encourage people to conduct their daily affairs with the knowledge that they would have recourse to the law

Under this system :-

1.The lawyers dictate the intention of the parties resulting in a boxing ring culture rather than a solution seeking culture. The adversarial system translates into the dominance of lawers in the process which enables them to dictate the intention of the parties and the marginalization of the parties which resulted in a boxing ring culture rather than a solution seeking culture

2.The courts acts as umpire taking a hands off approach in the matter of hand so long as the complex boxing ring procedures are followed.

3.The complex procedures involved meant time and costs which are unsustainable to private individuals and small companies which meant that the Rule of Law is unfavourably balanced on the side of the party with deeper pockets

One suggestion is to bypass the courts altogether through Alternate Dispute Resolutions (ADR) which were emphasized to bypass the courts altogether through arbitration, conciliation/mediation and early independent evaluation. Courts were given power to order parties to attempt mediation failing which the courts could impost cost penalties or cost sanctions on the winning party. ADRs would seem to be the most practical solution to avoid the time and cost wastage in bringing a case to trial as most civil disputes are settled out of court anyway.

However there has been a consistent lack of demand for ADR when when it is provided at very low cost. The volume of mediation is low as there has been resistance to the idea of mediation. The desire for vindication and public acknowledgement of a wrong suffered can be very strong. The settlement rates of cases going for mediation have also dropped dramatically. This could be due to half hearted attempts to comply with mediation for fear of being judged unreasonably for not considering mediation.

To increase the demand for ADR new rules under the Legal Aid scheme stated that an application for legal aid for representation may be refused if there are ADR options which ought to be tried first. The government has also stated that it would attempt to resolve all disputes involving government departments through ADR wherever possible.

The reforms were implemented in the Civil Procedure Rules implemented in April 1999 and the courts were given power to order parties to attempt mediation failing which the courts could impose cost penalties or cost sanctions on the winning party. This was put into practice in cases such as Dunnet v Railtrack plc where it was stated that if a party rejected ADR out of hand, they would suffer the consequences of a discretionary order. In Halsey v Milton Keynes General NHS Trust it was added that members of the legal profession should routinely consider with their clients whether their disputes are suitable for ADR.

These cases typify the cold response to ADR and the low take up rate. The perception is that successful ADR saves the likely cost of proceeding to trial and may save expenditure by promoting earlier settlements. However unsuccessful ADR can increase the costs for the parties. There is also a death of knowledge about and familiarity with mediation and other ADR processes not only among the general public but among the legal profession as well.

In suggesting changes, the ultimate goal should be that justice is served on the parties making the claim. To solve the inherent problems of delay, cost and complexity the following suggestions are proposed :-

1.Moving towards a more inquisitorial system in which the judge would take a more investigative role and the two parties would be required t cooperate by revealing all the evidence to each other. Tactics would be less important. This can already be seen in Small Claims Courts where arbitrators now take a more interventionist approach which seems to have received strong support from the public according to J.Baldwin in his article "Litigants’ Experiences of Adjudication in the County Courts"

2.Reducing the time and costs factor by cutting down on the number of cases that eventually go to court with greater use and legitimacy of the ADR process. This would mean making it compulsory for selected cases to solve their disputes via this route. Another way to do this is to create encouragements to the legal profession to go via this route as ultimately they act as an important gatekeeper to clients’ choice of dispute resolution process.