The Woolf reforms have backfired because 'too many judges have copped out', a top City litigator claimed last week.



David McIntosh, chairman of the City of London Law Society and a leading defendant insurance solicitor, told a session on dispute resolution that the major failure of the civil justice reforms has come from judges failing to use the powers they have to manage cases and penalise bad behaviour by lawyers.



'Why on earth have judges allowed barristers to open cases for huge amounts of time?' he demanded, indentifying one of the abuses. Questioning what the point of skeleton arguments is if barristers just read them out in opening cases - a point endorsed by Simon Davis, president of the London Solicitors Litigation Association - Mr McIntosh recounted that advocates before the US Supreme Court have a strict 20-minute limit for opening addresses.



He also criticised the frontloading of costs, which 'ratchets up the proportionality argument'.



Mr McIntosh said he would like to see judges 'talk up litigation' and not seek to twist parties' arms to settle or engage in alternative dispute resolution where they could resolve a case quickly themselves. 'Judges should judge,' he said, adding: 'We're still arguing over whether the Woolf reforms succeeded. They should have done so resoundingly by now.'



Mr Davis, a partner at Clifford Chance, said solicitors, barristers and clients involved in litigation are all being asked to do too much work that had little benefit. Citing disclosure, he said: 'I do question how many cases are resolved by a smoking gun found in the documents.'



He suggested that each party should disclose up front all the documents on which they rely, with the other side able to seek specific disclosure of other documents. 'Huge great' witness statements are another problem, he continued. They would be of use to the court, but only 1% of cases ever go to trial.



Neil Rose