If you are a civil litigator able to remember serving a writ on behalf of a plaintiff, as well as the days of pleadings, interrogatories, further and better particulars, affidavits and discovery, then you are, shall we say, of a certain vintage.
For solicitors who have entered practice in the past decade, these terms are relics of the days before claimants and claim forms, statements of case, requests for further information, witness statements and disclosure.
But 10 years on from the implementation of the Civil Procedure Rules, have the reforms laboured over by Lord Woolf provided much more than a change in terminology?
The title of Woolf's famous report, Access to Justice, tells the story of why it was commissioned in 1994. Civil litigation was seen as too slow, too expensive, too uncertain and too adversarial - ultimately, it was not delivering justice.
Woolf's final report in 1996 was generally welcomed and survived the following year's change of government, as well as a further review commissioned by the new lord chancellor, Lord Irvine. The CPR finally came into being on 26 April 1999. In parallel came the Access to Justice Act 1999, which in particular replaced legal aid for personal injury with conditional fee agreements, and introduced recoverability of success fees and after-the-event premiums.
The repercussions of this latter policy continue to this day in the shape of the costs war, which has been conflated with the Woolf reforms to form a consensus that costs are the point at which the then master of the rolls failed - and led the current master, Sir Anthony Clarke, to ask Lord Justice Jackson to undertake his review.
The two are linked, however, in that front-loading costs - which Woolf hoped would speed up settlements - mean that the base costs to which success fees and premiums are anchored are higher. Certainly the problem of proportionality, of which Woolf was all too well aware, has yet to be cracked and is at the heart of Jackson's work.
David Greene, president of the London Solicitors Litigation Association and head of litigation at Edwin Coe, was on the original Civil Procedure Rule Committee and remembers the 'very heated' debates it held on recoverability. 'The arguments about costs have overshadowed the Woolf reforms and monopolised the courts' time in examining them over the past 10 years,' he says.
Robert Musgrove was head of project management for the later phases of the Woolf reforms and is now chief executive of the Civil Justice Council - itself the creation of Woolf. He says that while the evidence is not conclusive, 'I would say lawyers generally like and are comfortable with Woolf. Woolf reduced litigation and made more cases settle early. Civil procedures have been improved in terms of quality, but there has been a price to pay in costs. And Woolf justice appears to be fairer justice'.
Successes and failuresThe statistics show a hefty decline in litigation in the initial post-CPR years, especially in the High Court, but it has slowed since, while county court work is creeping back up towards the 1998 level.
Speaking recently at a LexisNexis debate, Clarke said the CPR have succeeded in reducing complexity and delay, while the overriding objective of dealing with cases justly has been well worth stating expressly. 'One might have thought that courts have been trying to deal with cases justly for the last 200 years, but really in some of the cases one sometimes wonders,' he says. 'The duty, introduced for the first time in the CPR, upon parties to co-operate has been extremely worthwhile... I don't think in general we should be gloomy about the CPR, because they are a good thing.'
There was plenty of research into the impact of the CPR in their early years, but less so since 2005. The overall effect was deemed positive, with many cases settling in the pre-action protocol period, and only very few of those issued actually reaching trial. A variety of surveys of the profession in the first five years showed broad contentment with the changes. Qualified success probably sums them up best.
The general view of the CPR's various successes and failures are encapsulated by a small survey of 30 experienced practitioners conducted recently by City firm Herbert Smith. On the positive side, there are swifter timetables, an increase in mediated settlements, part 36 offers and reduced interlocutory skirmishing due to the summary assessment of costs.
The key problems are disclosure, particularly e-disclosure, escalating out of control, a lack of sufficient informed case management from the judiciary, and costs.
Many of these would have been avoided had all Woolf's recommendations been implemented, argues well-known personal injury and employment lawyer Kerry Underwood, senior partner at Hertfordshire firm Underwoods. He highlights the failure to invest significantly in IT - which Woolf described as 'fundamental to the future of our civil justice system' - and not implementing fixed costs across the fast-track, an idea Jackson is likely to recommend resurrecting.
Anthony Maton, a partner at Hausfeld, criticises the IT for being 'as archaic as it's ever been'. He is sympathetic with many of Woolf's ideas and says the problem is how the CPR have been used - or not, as the case may be. They contain various provisions that would help litigation, but judges have not made the use of them that they should. Single joint experts, at least outside personal injury, and requiring proper costs estimates are but two.
For Greene, the lack of resources - which are now being cut back even further - is central and why Woolf initiatives such as case management have not taken off as intended. The problem is particularly acute in the county court, he says, and suggests that higher court judges can sometimes get the wrong impression of life lower down the ladder because they are personally well serviced.
Costly exerciseThis also crosses into the issue of court fees and the government's widely opposed policy of full-cost pricing. What is particularly wrong, says Greene, is that this falls on the shoulders of the poor, who face costs orders in the many housing repossession and debt cases. As a result, the county courts actually recover more than they cost, he says, and the recession will only exacerbate this unfairness.
The impact of front-loading costs through the pre-action protocols was controversial from the start, even though the principle of knowing your case and putting it to the other side before launching proceedings is not.
Tony Guise, chairman of the Commercial Litigation Association and head of London firm Guise, agrees that this might be the right approach, but says pre-CPR, when solicitors would not undertake as much investigation and issue proceedings more quickly, the case would then settle. It was, he says, a pragmatic tactic: 'You achieved the result without large costs.'
Greene adds that even if the costs were the same overall, the fact they were spread out over a longer period made it easier for the client to pay.
Underwood says that while such pre-issue investigation may be appropriate in a clinical negligence case, for example, it is unnecessary for a simple road traffic claim. And the message may be getting through. He observes that the government's planned new claims process for small road traffic cases requires little work from the claimant solicitor until the insurer admits liability.
Similarly, Guise says concepts such as the overriding objective and proportionality - while perfectly proper - have complicated litigation by producing new issues for parties to address, with a resulting impact on costs. Practitioners point to the ever-expanding White and Green books, as well as 49 updates in 10 years, as evidence that the CPR are only becoming more complicated.
More generally, Guise views the CPR as little more than 'a huge rebranding exercise'. While they have effected significant change with reforms such as the claims tracks and part 36 offers, in other areas such as case management, witness statements, disclosure and experts they have added little, he argues. It is no coincidence that the Jackson review encompasses all four of these issues as elements of procedure which drive up costs.
Management theoryThe popularity of strong case management is clear, even though arch Woolf critic Professor Michael Zander has often made the point that there has been no research into whether it is actually a good thing (there was no research underpinning the Woolf reform in the first place, he adds).
Woolf put case management at the heart of his vision, moving responsibility and control of the case from litigants and their lawyers to the court. Lawyers' frustration is that there is simply not enough of it - they want courts to exert greater control over the conduct of proceedings. Guise says case management conferences need to become 'much more meaningful experiences'; judges should identify the issues at an early stage, tie the parties to those issues and require budgets.
The Commercial Court's long trials working party, which reported in late 2007, highlighted similar problems. It recommended limiting the length of statements of case and the early creation of a judicially settled list of issues to take case management precedence over statements of case and be used to set the parameters for disclosure and the content of witness statements and expert reports.
The Herbert Smith survey says: 'Practitioners report that judges and masters are conscious that they are supposed to be proactive, and some are, but the overall impression is that increased judicial case management relating to defining issues, monitoring costs and settlement discussions (as opposed to timetabling) has not happened anywhere near to the extent envisaged by Lord Woolf... A large part of the reason has been the difficulty in finding sufficient time in the judiciary's already very full schedules for them to prepare fully in complex, document-heavy cases.'
Underwood agrees, saying the lack of resources means judges do not have the support in terms of staff, as well as IT, to keep on top of all the paperwork.
One solution favoured by Jackson and Maton is docketing, meaning the same judge runs the case from start to end. 'If you had a judge case managing who said "right, we're going to have a single expert or only have disclosure or expert evidence on the issues", then it would be faster, more efficient and cheaper justice,' says Maton.
For lower-value claims, Greene suggests taking case management further and moving away from an adversarial system towards a judge-led inquisitorial or accusatorial one, which should reduce costs (the adversarial culture is a major reason why single joint experts have not taken off, he notes). It pretty much exists already in the small claims court, but is not recognised as such, he says.
And then there is alternative dispute resolution, a concept not widely known before being promoted by Woolf. Its story has remained stubbornly static - those who use it like it, but the problem is getting people to use it in the first place. The courts have turned up the pressure on parties who refuse to mediate by applying costs sanctions, but the messages have not always been consistent.
This means the debate rages on over whether to make mediation compulsory, either before proceedings begin or as an integral part of the court process. Speaking earlier this month, the lord chief justice, Lord Judge, confessed to an 'underlying concern', not about mediation itself, but 'about too many people telling too many other people what they must do and thus compel an additional step in the process of litigation'.
Permanent revolutionMusgrove says jurisdictions around the Commonwealth have examined the Woolf reforms in great detail as part of their own similar reviews, 'and have advanced civil justice, both conceptually and procedurally'.
They have been widely adopted. Hong Kong, for example, last month introduced reforms which take on the best of Woolf but veer away from pre-action protocols and front-loading.
Musgrove says social policy thinking has also advanced considerably in the fields of ADR, education in legal literacy, free advice and representation through pro bono schemes, and the integration of state social support as part of dispute resolution (such as British Columbia's proposals for Justice Access Centres).
It is with all this in mind that the Civil Justice Council has commenced a three-year programme entitled 'A vision for civil justice', where it will attempt to update research into the CPR, and study each main area of civil procedure, testing it for utility and social context. Musgrove says: 'To me there are clear access to justice gaps, such as for consumers seeking to enforce their rights collectively, and for small and medium-sized enterprises - our potential economic salvation at this time of downturn.'
Sir Rupert Jackson sees his work as continuing the process Lord Woolf began, and for Musgrove, that process is far from finished. 'I am in the camp that believes firmly that Woolf has worked,' he says. 'And whether we are 10 or 15 years on, I have a message: Woolf has only just begun.'
Neil Rose is a freelance journalist