FAST TRACKThe Law Society supports Lord Woolf's outline proposals for a fast track for cases worth up to £10,000, provided the procedures are not so curtailed that they discourage settlements and lead to more trials and/or rough justice.

The Society also supports proportionality between what is at issue between the parties, and the procedures and costs.

A workable and fair fixed costs regime must have regard to the stage of the proceedings, value and complexity.

A district judge should consider the views of the parties when allocating a case to a track and invite representations or arrange a hearing if he or she plans to depart f rom their preferred track.

There must also be provisions for escape from any fixed cost limits.

Cases with a value of over £10,000 should only proceed on the fast track with the consent of the parties.

A timetable of 20 to 30 weeks will only be achievable if the county courts are given additional resources.

Sanctions for failing to observe the timetable or specific directions need to be even-handed and proportionate to the offence.In some cases, costs additional to any fixed costs payable should be recoverable as 'bolt-ons'.

Controls on costs should be only on a party-and-party basis.

As an incentive for the plaintiff to make an offer to settle, rather than penalties in costs there should be extra interest or a bonus on the damages awarded.

If the defendant does not meet the plaintiff's offer to settle, the plaintiff may be awarded much more at trial.If there are to be fixed costs, value and complexity should be related to the stage of the proceedings.

A proposed matrix to calculate this is set out in full in the response.

Pre-proceedings protocols might have a role to play, but should be kept simple.

New style statements of claim and defence would be welcome, but not standard form claims or standard questionnaires for taking instructions, except as guidelines.

Fewer requests for further and better particulars and the use of interrogatories on the fast track would be welcomed, but parties should not be prohibited from requesting further evidence.

Parties should have the right to ask questions of the other party, either after the claim and defence have been served or after discovery.

Excessive discovery is rarely a problem on claims with a value under £10,000.

The proposed new test for discovery, particularly in relation to adverse documents, is ambiguous.

If pre-action discovery protocols are prepared for certain types of case, a new limited discovery test post-action may not be necessary.On some occasions, witnesses of fact should give evidence in chief and be cross-examined.

It is short-sighted to presume that experts will not be called to give oral evidence on the fast track.

There are many reservations on the use of single experts and joint instructions, even on the fast track, except where parties agree.

It is not desirable for lists of experts to be held by the court.

The Society would prefer courts to work towards providing firm dates for trials when a defence is filed, rather than a warned week.

Listing questionnaires might be useful, but calling the party and legal representatives to a hearing for failing to return the questionnaire on time is unnecessarily heavy-handed.

If a case has to be adjourned at the last minute, other than at the parties' request, the court service should pay any wasted costs.

All the important decisions to be exercised by the district judge on track allocation and venue on costs banding and on the calling of oral expert evidence should be subject to rights of appeal.

HOUSINGThe Society supports duty solicitor/advice schemes in all courts dealing with housing claims and more specialisation and training for the judiciary.

The Law Commission should be invited to review and simplify housing law as a matter of urgency.

The majority of housing claims are not suitable for determination by arbitration and should be exempted from the small claims jurisdiction, or referred out on grounds of complexity.

All possession cases could be heard in the county court using one basic procedure.

The current problems in enforcing possession orders need to be tackled at the same time.

More defendan ts would be likely to attend possession proceedings if they were listed individually and heard in chambers.

A two-stage procedure for rent/mortgage arrears, with the first stage designed to recover the arrears and the second stage to consider possession, might be more effective than the present possession action.In severe harassment and nuisance cases, the court should have the power to order an expedited hearing.

Witness intimidation cannot be resolved by court rules alone.

While protection for vulnerable witnesses is desirable, the right of the defendant to cross-examine key witnesses is equally important.

Landlords whose properties have major repair problems need to be able to handle proceedings more efficiently.

A pre-proceedings protocol for disrepair would be useful, but it must be simple, not cause further delay and carry sanctions.

A right of appeal to the county court against decisions by local authorities and housing associations on the allocation of housing could be more cost-effective and user-friendly than judicial review proceedings.

Where several tenants on an estate have related claims, they could be effectively managed by the court in a group action.

Local government and housing association ombudsmen do have a useful role but they are slow and not always effective in providing remedies.

Complainants should be able to apply to the court to enforce an ombudsman's recommendations.EXPERT EVIDENCEThe issues paper underplays the importance of the role of expert as adviser to the party instructing him or her.

Expert evidence is not a luxury and can be the key to many disputes.

Many of the problems identified in the issues paper are not significant and there are other problems not listed which are more relevant, eg experts taking on work outside their expertise; experts not declining instructions when they are too busy; the ability of a well-resourced litigant to instruct several experts.The use of court-appointed experts is not advisable, except in very limited circumstances.

There is some scope for joint instructions to experts, but by agreement rather than by order of the court.

Joint instructions will not always be practicable.

Instructing the treating doctor is not a solution to the use of medical experts on the fast track.

One way of economising on expert evidence might be to encourage the defendant to accept a report from the plaintiff's preferred medical expert and/or to put some questions to that expert.

It is not advisable for the courts to establish panels of experts.The waiving of professional privilege of communications with experts is both undesirable and impracticable and would have far reaching consequences for other aspects of litigation.

New experts should be encouraged to undergo training.

Any form of compulsory accreditation would be unnecessarily expensive and could exclude occasional, but very useful, experts.

Standard formats for instructions to experts, or for experts' reports, should be guidelines only.

There is a need to widen the choice of experts, particularly in the medical field, which can best be done by positive encouragement from the relevant professional bodies.

Requiring a defendant firm or organisation to provide an in-house expert's report would be of little value.

Precluding oral expert evidence at trial in the fast track could lead to a miscarriage of justice.

Fixed dates for trial timetables would be one of the best ways of improving relations with, and availability of, experts.COSTSThe Law Society strongly opposes any court controls over solicitor and own client cos ts.

However, the Society agrees with Lord Woolf that clients should receive adequate costs information.

Limits on recoverable inter partes costs might be workable on the fast track and give greater certainty to clients, but any limits would have to reflect the nature of the case, its complexity and value, and the actual cost of doing the work required by the new procedure.

A fixed cost regime could lead to inappropriate corner cutting and reduction in the quality of service; could seriously undermine the successful introduction of conditional fees in personal injury cases; and would benefit only the party with the deepest pocket.

The Society strongly advocates monitored pilot schemes of the fast track procedures before proposals for fixed costs are taken further.

The Society is wholly against prospective budget-setting on the multi-track.

This would add unnecessarily to litigation costs and turn case management conferences into mini taxations midway through litigation.CLINICAL NEGLIGENCEIt should be recognised that in cases where clinical negligence is alleged aggrieved patients deserve at least an early explanation of what has happened.

When there has been an unsatisfactory outcome, clinicians should report situations in which patients might want to seek independent medical advice.

Health providers should accept that contemporary statements and reports following an unsatisfactory outcome are disclosable to an aggrieved patient.

Solicitors need to be encouraged by training and professional advice not to take on clinical negligence cases for which they do not have expertise.

Barristers and judges need to be more specialised and be trained in medico-legal issues.

There would be distinct advantages if small claims of up to about £10,000 were subject to an inquisitorial-type procedure, developed from the new NHS two-stage complaints procedure introduced in April.

The health service commissioner should also accept for investigation small claims where the patient might not be able to access a remedy in the courts or the costs would be out of proportion to the issues.

A two-stage inquisitorial-type procedure would be preferable for small claims, rather than a fast track in the courts.

But procedures in any fast track introduced should be streamlined, and should include: full disclosure of medical records; a facility for parties to instruct their own experts; case management and trials conducted by trained specialist judges; and a facility for oral evidence by experts at trial.

The Society's protocol for pre-action discovery and widening of pre-action discovery to other non-parties should be accepted and implemented.

Protocols and practice guides should include a timetable for letters before action and replies, with costs penalties if parties fail to act reasonably at the pre-action stages.

Multi-track case management should focus on two case management conferences.

Trial dates on the multi-track should be arranged soon after the first conference and a timetable for the trial itself arranged as early as possible.The royal colleges should widen the pool of doctors acting as experts.

There should be a very limited role indeed for court-appointed experts in clinical negligence cases and a fairly limited role for joint instruction of experts.

There should be no loss of privilege for communications with experts and/or use of experts' discussions and meetings, but with solicitors preparing the agendas.

A manual of standard material on quantum issues should be established.