Lord Woolf's honeymoon is over.
With the release last week of six issue papers covering crucial aspects of his inquiry into access to justice, it is now time for the profession to react to the detail and not just the principles.Lord Woolf himself recognises this.
Speaking last week to the Gazette, he admitted that he had had an easy time.
'But now', he said, 'the profession is going to need reassurance on a number of issues.'The papers concern the fast track, housing, multi-party actions, medical negligence, expert evidence and costs.
They invite comment from any interested party by 11 March 1996.The proposed fast track for claims between £3000 and £10,000 (see box) encapsulates many of the best and most controversial aspects of the reforms, and overlaps with some of the other papers.
The outline proposals for the fast track interim report are:(a) a set timetable of 20-30 weeks;(b) a warned week or fixed date from the outset of the case;(c) limited discovery;(d) maximum trial length of three hours;(e) no oral evidence from experts;(f) limited oral evidence from witnesses as to fact; and(g) standard fixed costs.The fast track is an attractive theory.
'I understand and am not against the principle at all,' says Suzanne Burn, secretary to the Law Society's civil litigation committee, which is curren tly preparing a full response to each of the papers.
'Efficiency is in everyone's interests.' But she is worried about how it may turn out in practice.The concern is that the fast track is not flexible enough.
Limiting each side to one expert giving written evidence is a subject of almost universal concern.
Of course, with a three-hour limit on trials, time is of the essence, but expert evidence can be crucial.
Many see the cross-examination of a witness as too important to lose.'Less emphasis on oral evidence will change the whole basis on which cases are decided in England,' says Digby Rose, head of litigation at Birmingham-based firm Edge & Ellison.
'The scope for a judge to assess witnesses' credibility and reliability will be reduced and we will end up with a system much closer to those of many other countries where cases are decided on the papers.
In our present system, for all the cost and delay, it is relatively likely that you will get a correct decision.'But sole practitioner Maurice Hackenbroch argues that, for cases where the issues are straightforward, Lord Woolf should have gone further.
'I would like to have seen provision for deciding some cases on the papers without formal attendances,' he says.The proposal to have the complete case set out from the start in the statement of claim and defence, and ending further and better particulars and interrogatories, is another example of possible inflexibility.
While the theory is widely supported -- especially making defendants plead their case from the start rather than just issue blanket denials -- some elements of a case only become important after the preliminary stages.
As proposed, the fast track does not accommodate further exploration of such issues.The Law Society's civil litigation committee may call for one round of questions after the defence, which it feels will increase flexibility but not cost too much in time or money.
In any case, as Mr Rose notes, this whole shift pushes costs up front, possibly discouraging settlements.The issue of solicitors' costs is probably the most controversial.
The issue paper considers various proposals, such as fixed fees, broad bands and percentage of the claim, most of which worry Mrs Burn.
She maintains that the value of a claim does not necessarily correspond with the amount of work involved.
'It could end up fixing costs at a level that would mean lawyers could not do the job properly or even at all.
That will affect both access to justice and solicitors' businesses,' says Mrs Burn.Mr Hackenbroch agrees.
He describes the proposals as a further blow for solicitors and the man in the street, who will be forced to become a litigant in person: 'The [proposals] also fail to take into account the possibility of the other side putting us to enormous expense by messing around.
Any sanctions would not be applied until the end of the case.'But Mr Rose welcomes broad-band fixed costs and the certainty they offer the client.
He is concerned though that the fast track may encourage lawyers simply to fill out forms to keep to the timetable.The proposed use of forms for the statement of claim, defence and witness statements, advocated by the Woolf issue paper, perhaps exemplify the concerns of practitioners.
A good idea in theory, but there are doubts about their practicality.
Peter Blake of Ipswich firm Prettys says: 'The fast track could work very well provided the judiciary is able to adjust to cases being less thoroughly prepared than they are now.'Mr Hackenbroch, however, is more concerned that delays in the county c ourt system mean that adherence to timetables will be impossible: 'It's good that someone has taken the time and bother to look at the system, but it has come from the wrong side of the profession.
Judges just don't understand the realities of the litigation process from the practitioner's point of view.'Away from the fast track, the paper on multi-party actions will be discussed this week at the Law Society's HQ in London by an audience specially invited by the Woolf team.
The consultation paper is less advanced than the fast track, seeking comment on general principles rather than actual detail.
It is also largely based on the civil litigation committee's 'Group actions made easier' paper, published in September 1995.Paul Balen of Nottingham firm Freeth Cartwright Hunt Dickins was on the committee.
He says such cases need a formal structure, encapsulated in a rule of court, which provides a flexible mechanism for each action.
He emphasises the need for 1000 claims to be treated as one, not separately, in multi-party actions.But the whole reform package hinges on the proper allocation of resources, and there is considerable worry about and criticism of the lack of commitment of resources to date.
A spokeswoman for the Lord Chancellor's Department said that the issue is being considered, while Lord Woolf told the Gazette that he thought resources would be reallocated from other areas.
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