The Civil Procedure Rules are 10 years old. Their ambition was to sweep away undue delay, complexity and heavy costs with new procedures for civil cases.
The fast-track claim has been one of the CPR’s main success stories – costs apart. It is this track which is designed to bring cases to a conclusion within 30 weeks from allocation, with a hearing lasting no more than one day. For all allocated claims in 2007, some 32% were put on the fast track, which is currently the appropriate track for claims of up to £15,000. This includes personal injury claims from £1,000 upwards, and other disputes valued at more than £5,000. The £15,000 limit is rising to £25,000 for claims commenced on or after 6 April 2009, which will inevitably increase the number of fast-track cases, reduce the number of multi-track cases and make district judges busier than ever.
I believe there are worrying aspects in the way some fast-track cases are handled. It is understandable that many insurance companies, who are really the main players in road traffic claims, instruct certain firms to conduct these cases in bulk. It is equally understandable that such cases should be handled by a fee-earner at the appropriate level for the particular case. What is less understandable and excusable is the low standard of preparation, and of service to the client, provided by some firms.
A large volume of fast-track road traffic cases is now handled remotely, with the solicitor’s office possibly hundreds of miles from where the client lives. There is nothing intrinsically wrong in that, provided the service provided is satisfactory. But time after time, judges see litigants in court, whether claimant or defendant, who have little or no idea of what is going on, and have not been properly advised about what to expect. Usually they will be represented by counsel and he or she will be the first lawyer they have engaged with since the litigation began.
The litigant goes into the witness box. Their statement is before them. They are asked their full name. I would guess that in 95% of such cases, the litigant gives at least one forename that is not in the witness statement. How can this happen? Paragraph 18.1(1) of the practice direction to part 32 of the CPR says that the statement should state ‘the full name of the witness’. How difficult is that? Surely, when obtaining initial instructions, it will be the first question asked, and that will be the same whether the instructions are taken over the telephone, by letter, or face to face.
All too frequently the witness, possibly under cross-examination, changes crucial parts of their evidence from that which appears in the witness statement. All judges know that such statements are usually prepared by the fee-earner and sent to the witness for approval and signature, but it is essential that the statement is accurate. Is this so difficult? The fee-earner cannot simply guess at what might have happened, but must do what they can to ensure that the statement accurately reflects the client’s version of events. Changing their evidence in the witness box simply damages their credibility.
It is important to remember that the Woolf reforms were about access to justice. Every litigant should be able to feel that their dispute has been handled justly throughout, even if they have lost. Litigants in road traffic cases usually have legal representation. Hundreds of litigants in other types of cases are unable to be represented because legal aid effectively no longer exists for civil cases and they cannot afford to pay privately.
Surely doing high-volume work using lower-grade fee-earners should not mean selling the clients short by sloppy preparation. The experience of going to court is not something clients are used to and they may feel very anxious. The last thing they need is to feel they have been let down by their lawyers.
District Judge David Oldham is the new president of the Association of Her Majesty’s District Judges. He sits at Sheffield Combined Court Centre and is also a recorder