SUZANNE BURN FINDS LOTS OF GOOD NEWS FOR SOLICITORS IN THE FINAL WOOLF REPORTLord Woolf's final report should leave no doubt in practitioners' minds that the Master of the Rolls has, to use his own words, a 'mission to convert' litigants, lawyers, judges, court staff and the Lord Chancellor to his 'new landscape' for civil justice.

The Lord Chancellor intends to announce an implementation strategy in the autumn.

However, as it seems unlikely that any additional resources will be provided, the new landscape will almost certainly evolve gradually over many years, rather than be built overnight.

Solicitors in every litigation firm should read the report carefully and begin to plan how to adapt to the new system.

Lord Woolf's agenda is to put the client very firmly first.

He wants the civil justice system to serve litigants' needs.

He especially intends to 'level the playing field' and enable ordinary citizens and small businesses to have an affordable, speedy and fair chance of pursuing or defending a good claim, even against well-resourced opponents.

There are only a few surprises in the main proposals of the final report.

The framework of the proposals remains largely unchanged from the interim report published last summer.

But there are some new ideas that will need to be considered carefully.

These include a hybrid streamlined track on the multi-track, particularly designed for lower value cases when the opposing parties have unequal resources.

In addition, well-resourced parties who want to undertake expensive steps will pay the costs of both parties in connection with that work.

The Court Service and the taxing office will produce guideline 'benchmark' costs that will normally be allowed for types of cases with predictable procedures, for example judicial review.

Some cases are to be decided without oral hearings when the facts are not in dispute.

There are also greatly enhanced rates of interest -- up to an additional 25% -- for plaintiffs who make offers to settle which are rejected by defendants, but which are beaten at trial.

Finally, companies will be allowed to represent themselves in court through authorised employees and to claim costs in a similar way to litigants in person.There is lots of good news for practitioners in the final report.

The intended higher profile for civil justice -- which has already been signalled by the appointment of Sir Richard Scott -- should make life much easier for litigators.

There is to be a presiding judge in charge of the civil lists on each circuit, a network of more sophisticated trial centres, centralised control of practice directions, firm dates for trials and more specialisation by the judges.

Lord Woolf has also emphasised the importance of maintaining a network of efficient litigation practices, especially in rural areas.

He has suggested that experienced solicitors might act as procedural case managers in multi-party actions.The Law Society has worked very closely with the Woolf team to try to ensure the proposals are workable and acceptable to the profession and their clients.

However, the Society does not agree with all the recommendations and will continue to press for more workable proposals, particularly with regard to fair and reasonable fixed costs on the fast track (see p.21).

These can only be developed after the new procedures have been piloted, or worked through in detail for different types of case by a variety of practitioners.

Most importantly, the Society will continue to press the Lord Chancellor properly to resource the reforms.Solicitors should view the new litigation landscape positively as an opportunity to offer clients a better dispute resolution service.

HE REAL CHANGES WILL COME WITH THE NEW CIVI L PROCEEDINGS RULES, SAYS ROBERT TURNEREfforts have already been made by various sections of the High Court to bring litigation under the control and scrutiny of the court.

The Commercial Court and the official referees have been foremost in this regard.For example, judges in charge of the jury have been appointed, non-jury lists in the Queen's Bench Division have been introduced, new directions for the management of cases have been issued and pre-trial reviews for cases expected to last more than ten days have been introduced.All this is within the context of the existing rules.

Nothing will change radically overnight with the publication of the final report of Lord Woolf's inquiry.The draft civil proceedings rules that accompany the report will need to go out for comment and criticism by interested bodies and there will probably be as many views on them as there are members of the profession.

Replies are required by 29 November 1996 so that they can be considered and collated by the new rules committee proposed for both the High Court and the county courts.The real changes will come with the introduction of the new rules, which require the pleadings in each defended case to be reviewed by the master, who will give written directions or conduct a case management conference.The rules will allow flexibility in this regard.

Some cases at the bottom end of the multi-track will receive written directions to avoid the costly attendance at court if the parties agree.

Others will require pre-reading by the master and careful preparation of lists of issues and a programme for progressing the action to trial if the master's-- recommendations for the parties to consider ADR in appropriate cases do not bear fruit.There are some novel features proposed in the new rules.

The first is the test for the determination of summary applications to strike out or enter judgment, namely whether the respondent has a realistic prospect of success.The other is the new approach to disclosure of documents by adopting as the test for standard discovery, 'the documents upon which a party relies and those documents of which he is aware, which to a material extent adversely affect his own case or support his opponent's'.The legal profession will have to live with the fact that the court will be summoning the parties before it.

It will be asking questions about progress and will be initiating applications to determine issues.

But there is nothing new in this because ord 14A already has such a provision, though it is little used.

The difference is that the ethos may change.The Woolf proposals seek to replace the 'reactive' judiciary by 'proactive' judges who see it as quite proper to intervene in the interests of the parties to encourage and, in some cases, force litigants to bring their cases to court if not resolved by ADR.

Only the threat of an early trial may bring about a resolution of the issues.

But there is a price to be paid if the courts are to take on this managerial role.

The masters will need assistance and support of a clerical and secretarial nature because at present no master has a clerk or secretary.

Court files in the Queen's Bench Division will need to be introduced and they will bring all the problems associated with the management of 'paper'.

There is an urgent need to computerise the cause book to enable the court both to diarise cases and to police its orders and directions.

All of this will cost money at a time the executive is seeking to reduce public expenditure.

The crux may be whether the resources will be made availa ble to implement the recommendations as a coherent package.

Otherwise they may fall prey to the temptation by a budget-conscious executive to select only those reforms which do not cost money or to ask the judiciary to attempt case management without adequate means to do so.SIMON PARRINGTON BELIEVES EFFICIENT LITIGATORS WILL THRIVE ON THE FAST TRACKThe fast track promises a complete culture change for lawyers -- judiciary and litigants alike.

The days of protracted litigation will be gone, as will interlocutory sparring, county court scales, hourly rates and taxations.

Lord Woolf's report envisages that the fast track procedure will be simple, quick (30 weeks) and that inter partes costs will be fixed.All claims will be started in the county court by the filing of a new form of statement of claim.

The claimant will be required to set out his or her case in simple terms and to certify the monetary value of the case.

Within 28 days of service the defendant will be required to file a defence, setting out those parts of the claim that are admitted, those that are denied and why there is a dispute.

On the filing of a defence, claims will be scrutinised by a district judge.Most cases with a value of more than £3000 (or £1000 worth of personal injury) but not more than £10,000 will be allocated to the fast track.

Once on the fast track, there will be a fixed timetable for compliance with standard directions in relation to disclosure of documents, exchange of witness statements and experts' reports and the returning of listing questionnaires.

Failure to comply with the standard directions may bring adverse consequences; it will be for the 'defaulter' to seek an extension of time before the expiry of a particular time limit.

Once the disclosure and exchange time limits have expired the court will despatch a listing questionnaire which must be returned within 14 days.

Failure to return the form will result in the parties having to attend a directions hearing in order that the court might resolve any difficulties.

Thereafter, the court will fix a trial date.At trial, only expert evidence as to fact may be called.

The case will be given up to one day, but no more, for hearing and must be completed in the time allowed.The new fixed costs regime will be based on an easy-to-understand matrix designed by the Law Society.

Cases will be allocated to one of three bands of costs, depending on the value and complexity of claims.

The bands will be divided in such a way as to allow a percentage of the total allowable costs, on the band allocated, for each stage of the case.

The combination of fixed inter partes costs and the matrix will enable solicitors to give clients an accurate estimate as to costs liability before the case beings.The most efficient litigators will survive and profit.

The canny solicitor for the plaintiff will prepare his case in full before issuing proceedings and then run as quickly as possible through the timetable, taking care to avoid default on the way to trial.

Defendants, insurers and their solicitors will need to collect and prepare their evidence on the first notification of a claim without delay, determine their position on liability as early as possible and then, if appropriate, make a realistic offer to settle before the plaintiff has a chance to reach the next trigger point on the costs matrix.Undoubtedly there will be teething troubles for the profession and for the Court Service.

It is the Law Society's view that the new procedures should be piloted to avoid the sort of chaos and extra cost which came with ord 17, r.11.

DAVID HARTLEY GIVES QUALIFIED APPROVAL TO FIXED COSTS FOR CASES ON THE FAST TRACKMost lawyers agree that our present civil justice system gives power to the party with the greatest financial resources.

That is why the Law Society supported the proposals in Lord Woolf's interim report for a system of fixed costs in fast track cases -- as long as it made justice more affordable and the benefits outweighed the disadvantages of restricting the amount of work that could be done to prepare a case properly.

Crucially, the Society insisted that fixed costs should only apply to inter partes costs.

The Society also suggested that it would be necessary to provide mechanisms for escape from fixed costs.

The main features of the fixed costs proposals are:-- They apply only to inter partes costs and not to solicitor and own client charges unless the solicitor has failed to agree an alternative basis of charging in writing.-- There will be two value bands of costs, for claims up to £5000 and £10,000 respectively, with two levels of costs within each band: one for straightforward cases and the other for cases requiring additional work (such as the need for expert evidence).

-- The fixed costs will be divided into tranches relating to the stage the case reaches.-- There will be additional bolt-on fees for trial advocacy and interlocutory applications.-- There will be amendment of the indemnity principle so that the costs recoverable are the fixed costs even if the solicitor and own client costs would be lower.-- There will be separate fees for experts and other disbursements.-- Conduct of litigation in an oppressive manner will lead to escape from the fixed costs regime.-- Non-monetary claims will be treated in the same way as straightforward cases up to £10,000 or transferred to the multi-track.The Society, the National Consumer Council and others urged that the new procedures should be piloted without fixed costs, to see what it actually cost to run cases.

Lord Woolf identified a number of problems with this, whilst acknowledging the need to ensure that the figures set are both fair and realistic.

He suggested instead the setting up of a series of detailed hypothetical case studies, to be tested repeatedly in exercises with practitioners, the judiciary and the Court Service in a number of different areas.

Lord Woolf makes it clear that detailed work on costings has not been undertaken and that this will be necessary to establish the final figures.

From academic research undertaken for his inquiry, he considers it should be possible to litigate even the upper band of fast track cases for £2500 plus VAT and disbursements.

However, it is made clear that this is a preliminary assessment to inform the structure, rather than the actual level of costs.

There is a welcome acknowledgement of the need to ensure that fast track cases can still be conducted by small firms.WOOLF RECOGNISES THAT MEDICAL NEGLIGENCE WORK IS DIFFERENT, SAYS SARAH LEIGHLord Woolf emphasises that a change in culture is needed and that problems will be alleviated if doctors and managers 'demonstrate their commitment to patients' well-being by adopting a constructive approach to claims handling'.

Patients 'must recognise that some degree of risk is inherent in all medical treatment'.

Last summer Lord Woolf suggested the formation of a liaison body to bring together all the various interests involved and the Clinical Disputes Forum is now in existence.

Lord Woolf hopes that the Clinical Disputes Forum will develop a protocol for pr e-litigation resolution.

He commends the Law Society's medical negligence working group of plaintiff and defendant solicitors for leading the way with the 1995 medical records disclosure protocol.An effective pre-action procedure must encourage early and full communication between the parties.

'Every patient who has suffered an adverse outcome is entitled to an explanation and where appropriate an apology,' he writes, noting that some hospitals offer to pay for unrepresented patients to have independent advice on quantum.

Such a procedure should include provisions for voluntary pre-litigation mediation for which legal aid should be available.

The letter before action returns to its old position of importance; patients and their representatives must play their part by giving the defendant at least three months' notice of the allegations before serving proceedings.

Defendants in turn must respond fully.

Lord Woolf suggests that the NHS should improve its systems for tracking staff who have moved on.

Unreasonable behaviour by either side should be taken into account by the court in setting timetables and awarding costs.On the question of a medical negligence list and trained specialist judges, Lord Woolf's final view is that 'medical negligence work is significantly different from, and in many cases more complex than, ordinary personal injury cases, and effective case management (including trial management) requires a degree of familiarity with standard medical practices and procedures which are unlikely to be acquired by judges who only occasionally deal with medical negligence cases'.

He says that there should be a separate medical negligence list in the Queen's Bench Division in London.

Elsewhere, there should be designated court centres handling medical cases at every level and regional or perhaps national lists.

Mediation should be available.He says that the Judicial Studies Board should consult the royal colleges and the Association of Victims of Medical Accidents in designing judges' training, which need not be entirely separate from the professions' training.

The task of judges should be made easier by the provision of an easy reference core bundle of chronology, statement of issues, glossary and summaries of expert reports.

Generally, extensions by consent will be forbidden but the parties will be able to agree an extension of time of up to three months for the defence.The new rules will be sufficiently flexible to allow for provision for specialist areas in practice guides.

The new Civil Justice Council will gradually develop practice guides for specialist types of litigation, and Lord Woolf suggests that the Clinical Disputes Forum might make a start on this task.In relation to cases under £10,000, Lord Woolf accepts that the normal fast track will not be suitable for most medical cases.

Strict proportionality of costs to damages cannot be applied, he says, but 'disproportionate use of resources in this area is unsustainable'.

Most people consulted thought that the present system was too expensive.

Lord Woolf canvasses the alternative solutions raised in the course of the inquiry and concludes that the Court Service should run pilots to test them.

A revolutionary recommendation is that no expert report should be admissible unless the instructions for the report are annexed.JAMES BURNETT-HITCHCOCK BELIEVES THE MULTI-PARTY REGIME WILL BE WELCOMEDThe report sets out a comprehensive regime for the handling of multi-party actions, which will be welcomed by practitioners in this crucial area.The first main poi nt relates to court control and case management.

Upon establishing that a 'multi-party situation' (MPS) exists, the court will take control.

However, it has the flexibility to deal with claims within the group collectively or individually.

A single managing judge will handle the action throughout, with additional support from a lawyer with extensive MPS experience, sitting as a deputy procedural judge.

Continuity of management will vastly assist the individual cases and lessons learned in one action should be easily brought to bear on its successors.In relation to the shape of the action, the court will determine at the outset whether the action as a whole should be allowed to proceed, and what criteria should be met by those who wish to join.

The report says that costs and costs-sharing arrangements should also be considered by the court at the outset of the action.

Combined with court control and management, this will help to realise an essential theme of the report, that litigants should always know where they stand financially and be able to review the options accordingly.

In practice, 'litigant' often means the Legal Aid Board, and millions of pounds' worth of costs may be at stake.

At present far too much is left for argument before the taxing master when the case is over.

Strategic decisions made during the case then turn out to have disastrous costs consequences.

Under Lord Woolf's regime, the judge should give a clear steer on the likely cost consequences of an application.Once an MPS is certified, and the designated judge appointed, some novel procedural moves include:-- Plaintiff representation is given to a lead firm or firms with appropriate back-up.

Failing agreement on who is to act, the court will make a decision.-- The plaintiff group will be defined as will the question of whether the case is to be opt-in or opt-out.-- If it is to be opt-out, the court will determine minimum joining criteria.-- A plaintiff register will be established.

Claimants will become plaintiffs by satisfying the criteria and being entered on the register.

This will avoid several thousand writs being issued nationwide.-- A trustee may be appointed.-- The Limitation Act is suspended for those who join the action.-- Settlements must have court approval.On the subject of funding and legal aid, Lord Woolf advances two particularly interesting ideas.

The first is to extend the upper qualification limit for legal aid against a higher contribution.

The second idea is to establish a contingency legal aid fund financed by a levy on successful claimants' damages.

This would pay only disbursements and advance costs incurred by MPS plaintiffs.

WENDY BACKHOUSE CONSIDERS THE NEW REGIME ENVISAGED FOR SOME HOUSING ACTIONSThe report recommends that all claims for possession of domestic property, including those against squatters, should start in the county court and should be heard in chambers.

In rent arrears cases, Lord Woolf recommends a two-stage procedure.

First would be a paper procedure leading to a court order for repayment of arrears by instalments.

The tenant would be given an opportunity to consider the landlord's claim form and return a form to the court indicating any defence to the arrears claimed or any counterclaim, and giving any comments on the instalment figure proposed by the landlord.If the repayment order is breached, the case will proceed to the second stage.

The landlord can apply for a possession hearing at which the reasonableness of a possession order, including a suspended one, would be considered.

B reach of a suspended order would carry a greater risk of eviction than at present.

Applications to set aside warrants of execution would be more difficult unless there had been a change in circumstances since the making of the order.The procedure should stop the block listing of possession actions and the current virtually automatic award of suspended possession orders.

It should also free up court time to deal with cases that are to be given a hearing.

The new procedure would not be compulsory, but landlords would have to justify going straight to a hearing.

It is envisaged that the two-stage procedure could be used by both social and private landlords.In response to concerns about the courts' ability to deal effectively with serious cases of anti-social behaviour by tenants, Lord Woolf recommends some modifications to procedure which retain safeguards for defendants.

The new procedure will apply to social landlords dealing with serious cases of nuisance or harassment, involving threats of or actual assault or serious damage to property.

If necessary, proceedings can be commenced using unsigned witness statements to protect tenants from intimidation.

A pre-trial review would take place within ten to 15 days of issue at which possession could be granted if the defendant did not attend.

A hearing would take place within ten to 13 weeks from issue.The report does not accept that it would be desirable or possible to continue witness anonymity beyond the pre-trial review.Lord Woolf recommends a pre-action protocol in disrepair cases.

This would require landlords to establish a clear procedure for reporting disrepair and to issue tenants with receipts for any reports made.

A tenant who is dissatisfied with his or her landlord's response to a report of disrepair can request the landlord to instruct -- at the landlord's expense -- an appropriate expert or experts from a locally agreed list to inspect the property and prepare a report within a fixed time.

The landlord would then have a limited time to indicate what work would be done and to offer compensation.

If a tenant remains dissatisfied, he or she can commence court proceedings.

This should be quicker as the expert evidence will already have been obtained.

Details of the protocol still have to be finalised.

The report proposes a new appeal to the county court on judicial review principles in homelessness cases.Disrepair and illegal eviction or harassment cases are likely to be delegated to the fast track, which places limits on procedure and on the use of expert evidence.

There will also be fixed costs.

If such cases require expert evidence, they will attract the higher rate of costs for each band, with a 'bolt-on' fee if an interlocutory injunction is needed.CATHERINE BOND AND MARK SOLON ASSESS THE CONTROVERSIAL PROPOSALS ON EXPERTSLord Woolf's intention is to create a sensible way to use experts to reduce the cost of litigation and he has made four main recommendations.

His first recommendation, for a single court-appointed expert has met with considerable resistance from lawyers during the consultation process.

He proposes that although experts should all be 'neutral' they could still function within a broad adversarial framework.

Wherever possible, the expert should be chosen by agreement between the parties and should act on instructions from the parties.

Lord Woolf's overriding aim that the courts should be in charge of the management of cases also applies to experts.

There should be no expert evidence at all unless it will help the court.

There should be no more than one expert in any one speciality unless there is a real purpose.

The new rules will not allow expert evidence without leave.

The options will be: no experts; a limited number of experts; one or more experts chosen by agreement between the parties or appointed by the court; or written expert evidence only.The Law Society has stated its opposition to courts compelling parties to instruct joint experts in fast track cases.

Also, it is opposed to courts not allowing oral evidence from experts at fast track trials.

Lord Woolf's second recommendation is that to emphasise the role of independent adviser, reports intended for use as evidence in court proceedings should be addressed to the court and instructions should be 'transparent'.

His interim report went as far as to suggest that legal privilege should not apply to communications between the expert and the client and legal advisers.

The final report does not follow this but does remove privilege from the instructions.

Solicitors will therefore need to be particularly thoughtful in their instructions.

Reports should contain a declaration which includes statements to the effect that the expert understands the primary duty is to the court, that the report is accurate and complete and mentions all material matters including anything that may adversely affect the opinion given, and that the opinion is independent.A principal recommendation is that opposing experts should adopt a co-operative approach.

Wherever possible, there should be a joint investigation and a single report indicating areas of disagreement.

Lord Woolf recommends that experts should meet in private and produce for the court a written list of agreed matters of professional opinion and matters in dispute.

However, it is still for the parties and their legal advisers to consider the effect of any agreement or disagreement on the future conduct of the case.Fourthly, the report found much concern over the quality and reliability of experts' reports.

Problems included: reports that were partisan, contained irrelevant material, strayed outside the expert field or missed the issues to be considered.

It seems many experts do not understand their role or how to produce effective evidence.

Lord Woolf does not recommend an exclusive system of accreditation as this could exclude potentially competent experts.BUSINESS CLIENTS SYMPATHISE WITH THE WOOLF AIMS, JONATHAN FORTNAM HAS FOUNDPinsent Curtis' survey of 500 companies and institutions revealed widespread support for Lord Woolf's civil justice aims of expeditious and cost-effective results.

As regards case management, 70% of respondents favoured submitting the direction and pace of litigation to a case manager, and 66% agreed it was better to resolve the dispute promptly than to become bogged down in fine detail.

Lord Woolf is committed to such change.

His final report encourages immediate costs sanctions and robust orders to secure co-operation.

Immediate sanctions may, in practice, prove a difficult pill for the business community to swallow.

However, it will be an impetus to change.

As Lord Woolf says, it is only when lawyers and clients see that they have an 'active judicial critic' looking over their shoulders that habits will alter.Mediation is a key aspect of Woolf's proposed reforms.

Our survey showed that 64% of businesses had never used mediation, although it had been considered by 61%.

Some 65% of respondents favoured compulsory mediation in the run up to trial, whilst 39% were in favour of attempted mediation as a prerequisite to issuing pro ceedings.

Lord Woolf's final report indicates a movement towards compulsory mediation although he stops short of it.

However, businesses may find themselves with little choice but to mediate as a consequence of other reforms.

Our survey showed that whilst over half the respondents believed a more restricted discovery obligation would improve commercial litigation, 65% foresaw a consequential risk of injustice.

In his final report, Lord Woolf acknowledges this difficulty.

On single, court-appointed expert witnesses, Lord Woolf has acknowledged that business clients are likely to instruct their own experts in addition to any appointed by the court.

Of the survey respondents who had used expert evidence, 85% said they would instruct their own.The principle of change and the key aspects of Lord Woolf's reforms will strike a chord with the majority of businesses.

However, sufficient resources must be made available to ensure enough 'active judicial critics' to police compliance with the reforms.

Investment in information technology may not be enough, unless the new regime on costs and the emphasis on 'front loaded' litigation makes litigation so unpalatable that businesses cease to litigate in all but the most extreme of cases.