Judiciary inhibits reform

Pre-action protocols: lawyers do not apply for sanctions through fear of inconsistency

Judicial inconsistency in the face of breaches of protocols and costs assessments continues to undermine the Woolf reforms, according to the latest quarterly survey of solicitors in the post-reform regime.The Woolf Network questionnaire, commissioned by the Law Society, canvassed opinion from 130 solicitors last autumn.Most - 70% - said the reforms were working well, but had some reservations.Lawyers do not apply for sanctions when protocols are breached, according to 60% of respondents, because these are discretionary and the judiciary is inconsistent.There was a view that generally the courts were unwilling to impose sanctions in all but extremely serious cases.

Judicial inconsistency was also widely cited as a deterrent to an application for sanctions, as it was likely to add to delay and costs.Half the respondents said inconsistency was also a problem with the assessment of costs, and there were overwhelming reports of inconsistency of approach by judges and arbitrary reductions of bills.

This was having profitability and cash flow implications for claimant firms.Law Society Vice-President Carolyn Kirby said there was little doubt that the Woolf reforms have improved the civil justice system, but she added: 'However, for clients and court users to feel the benefit, the system must be properly resourced and we must not allow the pre-action protocols, introduced to make the system more efficient, to be undermined by lack of enforcement.'Jeremy Fleming