A decade on from reform

It is 12 yearS since Lord Woolf, the then-Master of the Rolls, published his final report titled 'Access to Justice'. The final report followed the interim report a year earlier. The main product of these reports was the Civil Procedure Rules (CPR) which came into effect on 26 April 1999. Thus the CPR have just entered their 10th year of operation and we can gain some idea of the success of the changes measured against Lord Woolf's original thoughts as to the ills in the system which he was seeking to address.

Identified principles

In his interim report Lord Woolf identified some principles that the civil justice system should meet to ensure access to justice. These included that the system should be 'just' in the result it delivers; be fair in the way it treats litigants; offer appropriate procedures at a reasonable cost; and deal with matters with reasonable speed.

Lord Woolf also identified the defects in the system under the Rules of the Supreme Court and County Court Rules. He said generally that he thought the system was too expensive, in that costs often exceeded the value of the claim, and too slow. Further, the system reflected that old adage 'justice is open to all like the doors of the Ritz', in that wealthy and powerful litigants could use the system to their advantage to defeat the claims of those with lesser resources. In addition, Lord Woolf suggested that the parties and their solicitors had too much control over the process and that the court could usefully take control back to ensure that parties did not divert the courts from running an efficient and effective civil justice system. Finally, Lord Woolf proposed that there should be someone with clear overall responsibility for the administration of civil justice.

It hardly sounds revolutionary some

15 years later. On the introduction of the Civil Procedure Rules in April 1999, however, the then Lord Chancellor described it as 'the most fundamental change to the civil justice system in England and Wales for over 100 years'. He continued that: 'With such radical change, it will of course, be many months yet before I can be certain that the objectives of the reforms will be achieved on a permanent basis.'

In his final report Lord Woolf painted a new landscape for the civil justice process. He emphasised that litigation should be avoided wherever possible, that the litigation process should be simpler, shorter, more certain and less adversarial. Overall he wanted a system that was more predictable in its process and less costly.

In his final report, Lord Woolf made reference to the funding of litigation. He talked of the extension of legal aid funding for pre-litigation resolution of problems and said that public funding should be extended to ensure that there were advice services available at the courts for those acting in person. Unfortunately these hopes were not to be fulfilled. Advice centres have closed and the retraction in legal aid has been a running sore between the profession and the government with the latter only backing down after the courts stepped in.

Legal aid enquiry

As Lord Woolf acknowledged, at the same time that he was conducting his inquiry, there was an inquiry into legal aid under the legal aid reform team. The political dynamic lying behind that inquiry was to reduce the costs of legal aid to the state. The goals of that inquiry lead it to concentrate particularly on the cost of civil litigation. It acknowledged that reducing costs in criminal proceedings was more difficult although that too fell under scrutiny.

In civil justice one of the results of the legal aid inquiry was the promotion of conditional fee agreements in replacement of legal aid in civil claims and particularly in personal injury.

The introduction of conditional fees and their extension over the years has undoubtedly been revolutionary. As part of that revolution, the whole concept of funding of litigation has been pushed to the fore. We are now tackling broadly the principles of allowing third party funders to profit from litigation they support and the questions that might arise from a growth in that market. As with conditional fees that change is placed firmly in the frame of allowing 'access to justice'. Further, we are starting to talk about the introduction of contingency fees on a US model. Only some 15 years ago these ideas and the potential conflict between solicitor and client to which they give rise would have made them non-starters.

Upon the introduction of the Civil Procedure the then-Lord Chancellor talked about seeing within a few months whether the system introduced by Lord Woolf was effective in achieving its declared aims. Some 10 years later we can now have perhaps a better view of what has worked and what has failed. We will all have different views but there are some subjects on which we will publicly all agree.

Of the successes, perhaps Part 36 has been the most marked in changing the dynamic of settlement between the parties. Part 36 has recently undergone some changes with the abolition of Part 36 payments in. This reminds us of the work of the Civil Justice Council and the CPR committee in continuing to review the separate rules and their development in practice.

The pre-action procedure promoted by Lord Woolf has also appeared to be successful in ensuring that parties attempt to settle dispute rather than litigate. There has undoubtedly been a change in culture among practitioners over the past 14 years that places settlement of disputes in priority. There may be some question amongst litigators, however, as to whether this encouragement has gone far enough and particularly the extent to which parties should be forced into mediation rather than the use of the civil justice process in front of the courts.

The division of claims into the three tracks has also been a success in developing simplified procedures for lower value claims.

Perhaps there are a couple of notable failures although in nether case can the blame reside with Lord Woolf. Firstly, in his interim report he submitted draft rules which were short and simple. This set was, however, transformed as the Rules Committee set about its work. The result some ten years later is that we have a substantial body of rules, accompanying practice directions and pre-action protocols and court guides that make the RSC and CCR look relatively slim. While solicitors may now know their way about those rules and practice directions, the White and Green Books do not give the impression of a simple process without complexity. In codification of the CPR it was thought that those books would be a thing of the past as precedent in civil process withered on the vine. In fact it is as strong as it ever was and ever growing.

Costs have increased

The most significant failure to most commentators, however, is in relation to costs. To some extent the changes developed by Lord Woolf became a hostage to the coincidental changes to the legal aid system; the removal of legal aid for civil claims and its replacement by conditional fee agreements. The rules and regulations that accompanied those changes have given rise to a vast body of satellite litigation. Further, the general view must be that success fees under conditional fee agreements have also given rise to an increase in costs because of the uplift in the ultimate payment by losing defendants. This burden was removed from the state through the legal aid system and transferred to the insurance industry and ultimately our insurance premiums.

Generally the rules do not appear to have reduced costs as Lord Woolf sought. Anecdotally most practitioners would say that costs have substantially increased over the years since the inception of the Woolf reforms. Lord Woolf wanted to ensure that matters should be fully prepared before anyone issued proceedings in front of the court to facilitate early settlement.

This front-loads the process and means that costs which might be expended over a period of time as the litigation progressed became concentrated prior to issue of the claim. This may make the claim proceed more smoothly and quickly but it has a negative effect on costs.

With the 10-year anniversary of the reforms almost upon us, has the time come to conduct a fresh review of the civil justice system as now constituted? The Rules Committee and the Civil Justice Council, created as a result of recommendations of Lord Woolf keep the system and the rules under review, but is there a need now for a more wide ranging review of the process after 10 years?

There are some who clearly say yes and perhaps the recent work of the Commercial Court Working Party on long trials reflects that view. This inquiry resulted from two large claims '“ BCCI and Equitable Life '“ that led to well-publicised criticism of procedures in long and complex trials. In its work the working party examined the whole procedure for such trials and has made recommendations for change that address, perhaps, some matters that need wider review.

Considering those recommendations one might conclude that they are good not only for the long and complex trial but also for claims of more limited value. Addressing, for instance, the growth in pre-action process and procedure, the Working Party recommends that the pre-action process should be kept within limits. Rather than a long and detailed explanation of the case presented by a claimant, it is suggested that the letter before claim should be concise and do no more than explain the proposed claim sufficiently to enable it to be understood by the potential defendant. One of Lord Woolf's recommendations was that pleadings might be used to set out not only the nature of the claim but also the evidence in support, exhibits and supporting documents. The Working Party, however, suggests to the contrary that statements of case should be limited; sufficient to allow the proposed defendant to identify the key aspects of the case and the basis on which the claim is made. The Working Party goes on to suggest that similarly witness statements should be more limited and focused on the real issues with which the witness can deal.

This is not the place to examine all of those recommendations but central to them is the desire to ensure that at an early stage the court can identify exactly what is in issue in the case. There seems to be no reason why that very good end should be limited simply to long trials. There may be some who would say these recommendations do not properly address the reduction of costs in litigation. This was not their primary aim. What they are looking at is ways of tackling some of the issues that arise in long trials as evidenced by the two cases forerunning the inquiry.

More wide-ranging review

Bearing in mind, however, concerns over some of the failings of the civil justice system which have continued after the Woolf reforms, the broad question is whether there should now be some more wide-ranging review of the process than is normally undertaken by the Rules Committee or the Civil Justice Council. This might allow us to revisit what Lord Woolf was trying to achieve, measure the current process against it and seek to redress any identified problems.