The cost of inconsistency

Fraser Whitehead finds solicitors pleased with the civil justice reforms in the latest Law Society questionnaire but care is needed on costsSolicitors are overwhelmingly...Fraser Whitehead finds solicitors pleased with the civil justice reforms in the latest Law Society questionnaire but care is needed on costsSolicitors are overwhelmingly positive about the civil justice changes, the latest six-monthly questionnaire has shown, with some 80% of respondents welcoming the reforms as a whole.The reasons are to do with the change of culture, a new spirit of co-operation between solicitors, and a process perceived to be quicker and less adversarial.Despite the overwhelming wave of optimism from solicitors about Woolf, it is clear there are problems which, if not addressed, may undermine the reforms success.The treatment of costs under the Civil Procedure Rules is clearly the least successful part of the reforms.

Solicitors describe the costs practice direction as unclear, unnecessarily complex and not working with any ease or efficiency.Front-loading of costs is a well known consequence of the reforms.

Solicitors are uneasy about this.

The reforms were meant to increase access to justice.

Can the level of increase in costs for the early stages of a claim really promote access to justice for the wider population?A conflict between front-loading and proportionality is also appearing.

Solicitors must do a great deal of early preparation to comply with protocols and prepare for the fast track, only to be told on assessment of costs that this is not proportionate.

Inconsistency of approach by judges, many of whom have little practical experience of the costs of preparation for hearings, appears to be widespread.The questionnaires produced many reports of judges frequently disallowing slices of costs for no obvious reason.

Many solicitors described the process as plucking a figure out of the air, and disallowing one-third of overall costs appears to be common.Investigation into these problems is needed to ensure this part of the CPR works.

Failure to do so will ultimately undermine support for the reforms within the legal profession and may also lead to a dramatic reduction in the firms available to do this work.Judicial inconsistency is not just a problem in relation to costs.

It is widely reported to occur in relation to time limits, requests for additional experts reports, disposal hearings and breach of protocols.

Problems seem to occur within a single court and between courts.The flexibility of the rules is one of their strengths, but there is a risk that uncertainty may become the main issue to the detriment of the real issues in dispute.

Lord Woolf envisaged that judicial discretion would be monitored to ensure a basic level of consistency.

This should be pursued as a priority.

A basic level of consistency must be a requirement of a fair trial.On top of this, case management under Woolf has greatly increased the burden on courts in driving the pace of litigation.

The simple fact is that the under-resourcing of courts appears to be reaching crisis point, particularly in large urban courts.

Complaints about delays and inefficiency are becoming increasingly frequent.

If the civil justice reforms are to succeed they must have the support of an adequately resourced court infrastructure.

Feedback shows this is not currently the case.Finally, care must be taken about the use of joint experts.

Clearly, there are many benefits to be had from using joint experts, and solicitors are positive about their use in fast-track cases, but it seems to be emerging that the use of joint experts is less helpful in many multi-track cases, particularly complex clinical negligence claims.

This needs to be monitored and revisited once clear data emerges.Lord Woolf introduced the civil justice reforms to cure the evils of cost, delay and complexity which he perceived to be at the heart of the existing system.

It is too soon to say whether the reforms have cured any of these ills, although there is no doubt that the change in culture is receiving almost unanimous support from the legal profession.Fraser Whitehead is chairman of the Law Societys civil litigation committee and a partner at London-based Russell Jones & Walker