Civil justice reforms

Civil justice reforms

Trying woolf

One year on from the introduction of the Civil Procedure Rules, we ask Lord Woolf and a group of leading practitioners how it has been for them

Jeremy Fleming talks to Lord Woolf, whose CPR reforms received an 80% approval rating in a recent opinion poll

It is hard not to be impressed by Lord Woolf's modesty.

There are few judges who, while alive at least, have given their names to major overhauls of a judicial system, yet despite this and the fresh news that he will be promoted to Lord Chief Justice in June, the current Master of the Rolls seems relaxed and unstuffy.This month's MORI poll findings - indicating that 80% of solicitors are content with the Civil Procedure Rules - have relieved him, but he acknowledges that there are still danger zones.On the inconsistency in applying the new rules, reported by many solicitors among the judiciary, Lord Woolf is sanguine: 'I'm afraid it's got to be expected.

There are bound to be teething problems; I'm only astonished that they haven't been greater.'The issue of front-loading of costs has been effective for settlement, but some commentators believe it can prevent access to justice by deterring potential litigants.

Lord Woolf is robust.

'The commentators are wrong,' he says.

Explaining that some lawyers used to issue proceedings as part of a tactical process, not because they had any real intent to proceed, he believes that if those sorts of litigants are now put off, 'that increases access to justice'.

He adds: 'The courts should not be used merely as a part of the tactical equipment of a macho lawyer.'Case management conferences (CMCs) are one of the mainstays of the new regime, intended to wring out opposing sides' bugbears away from the courts.

But they are controversial - some commercial lawyers believe they can be inappropriate and expensive.

Lord Woolf sympathises with this perception.

He says that if both sides have made sensible proposals and are agreed as to how to conduct a case, 'I don't say there should never be a CMC, but I would say that the district judge should carefully weigh up whether the costs involved in the CMC are justified by the likely benefits that will be achieved'.He acknowledges that there are no criteria which a judge can use to decide whether its worth having a CMC.

'What will happen, I hope, is that with experience, judges will recognise those cases where it's justified.' But he reserves some criticism for commercial lawyers: 'One must remember that lawyers also must appreciate how valuable CMCs can be; that CMCs really can transform the subsequent proceedings.' Some lawyers are resistant to this, he says, and the result is that they go to the CMC unprepared.

'CMC's only work well if the lawyers on both sides are really on top of their cases, and the judge has an opportunity to lead the parties into a sensible decision for the future of the case, based on accurate information,' he contends.Single joint experts are another controversial aspect of the reforms, with many reports of both sides in disputes appointing their own experts behind the scenes, augmenting the cost of advice.

While he accepts that this may happen, Lord Woolf sees a strategic significance for it.

In complex litigation, he believes it is reasonable - where a joint expert is agreed - for the parties to employ their own experts.

He explains that in a number of situations, their own experts will confirm to the parties that the single expert is right, thereby resolving issues, and making their own expert effectively just a safeguard.Where their own expert disagrees with the single expert, he believes that the party concerned will have to decide if it is worth contesting that disagreement with the single expert's report.

Sometimes, parties will decide it is disproportionate to do so, meaning that the single expert will have achieved his goal.

In other cases, 'they will decide to challenge, but instead of a dispute that is open-ended, it will be confined to the matter upon which the experts disagree, so overall, in the great majority of cases, there will always be a benefit'.And if this results in more expense? He maintains that such expense is 'well worthwhile if it resolves or reduces conflicts over expert issues', adding: 'If the case goes to trial, the expense of so doing is enormous, involving expert evidence being heard sometimes for days.'If the CPR have been successfully introduced, then lawyers are still waiting for the courts to move into the information age.

The IT revolution has long been promised, but not yet delivered.Lord Woolf is too shrewd to pin a date to a moveable feast; the big problem is that the available technology is so fast-changing.

'What I would be satisfied with today, I may not be satisfied with in six months' time,' he explains.

He has recently returned from Singapore, where he was deeply impressed by the almost paperless judicial system.

In such a small jurisdiction, he says, this process can be achieved rapidly, but not in as large a jurisdiction as England and Wales.

But he acknowledges that there have been mistakes: 'I think we may have got into a bit of a mess on IT, insofar as we were moving too fast without thinking where we were going.'Is there also an issue of funding the IT overhaul of the courts? He does not think so, believing the private finance initiative and IT firm EDS will guarantee its delivery.

However, he says some additional 'relatively modest sums' of funding would make a big difference in some areas, such as the introduction of telephone conferencing facilities, which he himself is only now about to receive.

The judiciary has held its own through the past year's reforms; a sturdy beach-hut left standing after the spring tide.

The fear is that the introduction of the Human Rights Act 1998 in October will hit it like a tidal wave.Lord Woolf says his own court has been preparing its computers for a big influx of cases.

There are also procedural changes being introduced from 2 May - certain Court of Appeal cases will be dealt with at a lower level - and this, he believes, will reduce the demands on his court.

He says these measures should enable the court to provide a quick and efficient service for human rights cases 'without our having to increase the size of this court, which I think would be undesirable, except possibly marginally'.He thinks it would be 'a great mistake to underestimate the impact initially of the Human Rights Act coming into force', adding that he has heard from other jurisdictions that 'the initial impact can be significant, but then things settle down fairly quickly, although it may be at a higher level than previously, but only moderately higher, and certainly manageable'.He adds: 'Nothing would bring the Human Rights Act more into disrepute than if we allow it to interfere with the way the courts are able to deliver justice.'Lord Woolf takes inspiration from the great reforming lawyers of the past: Lords Wilberforce and Reid (leading 20th century law lords); Denning (inventor of promissory estoppel); Diplock (extended the judiciary's power over the government); Mansfield (anti-slavery law lord, who said 'the air of England is too pure for any slave to breathe').

He also extols some of the current judiciary, 'but I won't embarrass them by mentioning them', he adds.

As he moves to his new position, the pundits will speculate that the eyes of reform will now focus on the criminal judiciary.

Lord Woolf treads carefully in responding to this speculation.

'Well, certainly, I think it is part of the responsibility of judges to make sure that our justice system is efficient and effective, and my responsibility in this job has been almost exclusively civil law...

but one of the reasons I look forward to getting involved again in crime is that I do hope that I can make a modest contribution to building on the work of my predecessors.' Leading practitioners last week huddled round their computers to discuss the Woolf reforms on-lineThe Gazette's first virtual on-line round table allowed leading practitioners to discuss aspects of the Woolf reforms.

Many of the points made were put to Lord Woolf in the above interview.

Below are extracts from the interaction, which involved:X Richard Chapman, partner at Wolverhampton firm Chapman Everatt and chairman of the Forum of Insurance Lawyers' Civil Procedure Rules special interest group;X Ted Greeno, partner at City firm Herbert Smith;X Robin Knowles QC of 3/4 South Square, a member of the Commercial Bar Association's executive committee;X David Marshall, a partner at London firm Anthony Gold Lerman & Muirhead and treasurer of the Association of Personal Injury Lawyers; andX Bill Vincent, a district judge at Evesham County Court.Q: How effective are Part 36 offers (to settle at any stage)?David Marshall: These are a success story.

Having recently won at trial an employment case with 50,000 damages, indemnity costs, and extra interest on costs and damages, my firm (and our client) are all in favour.

I doubt the penalties are anything like as extreme as those facing the claimant who fails to beat a Part 36 payment, but they should make the other side think.

The most important protection is indemnity costs.

This gets you away from proportionality, and I also think it is unlikely that a judge could award only part costs (because you failed on a quantum issue, for example) if a Part 36 offer is still exceeded.Bill Vincent: While a claimant who beats his pre-action offer is entitled only to have the court take that into account, I think it will be a rare case where a defendant who has put the claimant through the mill of an action rather than take up a fair offer to settle will not be landed upon from a great height.

Flexibility in the court's powers does, of course, let the court tailor a just result, where an inflexible rule may not.

Lack of certainty is the price inevitably paid.Robin Knowles: The Part 36 regime, and the sanctions available to the court, of course have an important place.

But there is need for care.

In litigation, where the stakes can already be very high, there is a difference between creating a climate where a disciplined and sensible approach by parties towards settlement is encouraged, and creating a climate which creates undue pressure to settle regardless of merits.Q: How are pre-action protocols working?David Marshall: My feeling is that they are working well in personal injury cases.

There is much earlier clarification of liability, saving considerable cost and stress on the part of the claimant, who was previously faced with 'tactical' denials for months or even years.

There have been some issues about choice of medical expert, but I think that the 'partisan' expert (on both sides) has had his day.So far as non-personal injury cases are concerned, my firm's experience is more mixed.

There is a front-loading of cost and rather unstructured correspondence taking the place of pleading, lists of documents and formal written evidence.

If this resolves the dispute, all well and good.

If not, I rather suspect it will add to cost as pre-action work will be re-done post-issue.

Perhaps the answer is more formal protocols in more areas of work.Robin Knowles: Pre-action protocols are, in concept, very important.

The balanced, sensible use of pre-action procedures is to be encouraged.

But an attempt at fishing that is oppressive, or an attempt at a complex dry run of litigation, are to be guarded against.

Pre-action protocols can help steer an appropriate path, but they require the greatest care and consultation in formulation, and discretion in application.Q: How are case management conferences (CMCs) working?Richard Chapman: There is a worrying trend in several courts, which involves district judges making orders on the filing of allocation questionnaires in personal injury actions, even in multi-track cases, which bypass the CMC process, setting a timetable which is really no different to the old automatic directions.

The court surely needs a case summary at least, if not representations from the parties' solicitors, in order to identify the issues and give appropriate directions for resolving them.David Marshall: My experience has been that if the parties put forward sensible directions (preferably agreed) they will normally be made without a CMC.

If both sides suggest wildly different directions, the court lists a CMC.

If one side only suggests directions, then unless they are obviously one-sided, there is a good chance they will be made.

The silent party has himself to blame.

If neither side bothers to suggest directions (or explain why a CMC is necessary), then I'm not surprised district judges set out proposed directions.Robin Knowles: I suspect that it all comes down to the type of case.

In the Commercial Court, case management conferences are an important opening stage in each commercial case...

It allows the opportunity for a focused discussion not only between advocates, but between judge and advocates.

The discussion is informed by an agreed case memorandum, an agreed list of issues, and case management questionnaires.Ted Greeno: My greatest concern about CMC's is that they require a considerable amount of preparation which turns out to be unnecessary.

This is a result of case management, and the judge being free to make orders of his own motion...

A further aspect of this problem is that it cuts across the principle that a party should know in advance the case he has to meet.There are too many instances on judges imposing inappropriately tight timetables which achieve little, other than to increase the costs...

Judges drawn from the Bar often have little first-hand experience of the practical challenges of preparing cases for trial and they should therefore be slow to order tight timetables against the parties' wishes.

They should also be wary of those parties who press for rapid timetables in the hope that this will engender procedural short-cuts, such as less thorough disclosure.

There is a widely held view, recently endorsed by Mr Justice Burton, that parties are trying to use the new rules on disclosure to avoid disclosing harmful documents on the grounds that they are only 'train of enquiry documents'.

There is a perceived danger (at least) that they may be allowed to get away with this because orders for further disclosure would upset tight timetables and ultimately threaten trial fixtures.

In my view, we should guard against speed being given greater priority than substantive justice.Robin Knowles: An important aspect of preparing for a CMC is that all the lawyers consider and discuss the issues to which a case gives rise.

This can involve a lot of work, but once done, the parties are well equipped to respond to points that the judge may raise without that requiring undue additional work.Members of the Commercial Bar (including those who have become judges) have direct personal experience of being involved in preparing heavy cases, and of the practical challenges and pressures involved.

In my experience, most heavy commercial cases involve a full team effort in which both solicitors and barristers are fully involved.

Ted is right to warn that there can be shortcomings in some parties' approach to standard disclosure.

To some extent, disclosure depends more than ever on the professional rigour and diligence of the lawyers.Q: Are costs going up or down?Ted Greeno: I am concerned that commercial cases are costing more to resolve.

It may or may not transpire that some cases will settle earlier than they would have done under the old rules, but it is widely accepted (including by Lord Woolf I understand) that the new rules have introduced additional cost at the pre-action stage (due to the need to follow protocols) and in the early stages of proceedings.

A member of the judiciary was recently reported as having said that this was always expected, but that it was thought that it would encourage settlement.

If that is right, it does raise concern for access to justice.

By making litigation more expensive, people are deterred from pursuing their claims.In the context of commercial claims, such an assumption would also misunderstand the dynamics which bring about settlement in my experience.

Cases do not only settle because they will be expensive to litigate or even because the issues have became clearer.

Other factors include changes in business relationships and objectives, as well as changes in management personnel anddifficulties with witnesses.

Very often, thepassage of time is a necessary part of this.In addition, the parties' views as to when they will have the best negotiating position will play a part.

This will often turn on their views as to the evidence to be disclosed during the process (including documents, and witness and expert statements), and this will also dictate the timing of settlements.

There is accordingly some real concern that the effect of the new rules has been simply to increase the cost to the parties of reaching a settlement they would have reached anyway under the old rules.Robin Knowles: There are a number of dynamics in the settlement of commercial cases.

But the combination of the CPR and the Commercial Court Guide brings earlier precision to a case: this is a welcome, not an unwelcome, contribution to the dynamics.

It allows accuracy to replace uncertainty as a factor.

I am not convinced that there is the evidence to say that total costs increase.I readily accept, however, that costs may often be incurred at an earlier rather than later stage, but it is the greater understanding that those early costs achieve (rather than the costs themselves) that can promote settlement.

An early focus on whether and when to use ADR, whether and when to use preliminary issues, how to ensure that the 'cards are on the table' - all these, and more, help reduce the chance of the things that really cost most - the 'door of court' settlement or the trial with more witnesses,documents and issues than are really necessary.