At first sight, it could be a dream, perhaps even a fantasy — a civil justice system in which lawyers exchange full information in advance and give their clients prior estimates of time and cost; the parties are expected to try and settle without litigating, and either of them can offer to settle at any time. If a court does take a case, it hears only the key points at issue; cases are allocated to fast-track or multi-track courts according to the complexity or size of the claims. If expert evidence is needed, only single experts are appointed and serve neither one party nor the other. Judges, for their part, act as trial managers who set tight timetables and levy penalties for deadlines missed, all with the aid of the latest IT systems.
Yet that was what Lord Woolf, the then head of the English civil judiciary or Master of the Rolls, envisaged in his government-commissioned report, Access to Justice , which was published in 1996. The first major proposal for reform in the English and Welsh civil system for 50 years, the report got immediate attention throughout the judicial Anglosphere.
Woolf clearly meant his proposals to improve access to civil justice, to cut costs, and to put the parties on an equal footing. There was widespread agreement at the time that civil litigation in England was unpredictably, excessively, and disproportionately expensive; costs varied between 41 and 96 per cent of claim values. The time cases took was equally problematic; four years was not unusual, and according to Woolf the main agents in complicating and prolonging cases were lawyers themselves.
Supported by a lot of favourable publicity, the proposals were widely welcomed, not least for proposing pre-action protocols whereby lawyers would get to know their case and put it to their opponents before launching proceedings. In February 1997, the then government passed the Civil Procedure Act, and in 1999 the new Civil Procedure Rules (CPR) took effect.
Nearly 15 years after the Woolf reforms were introduced, the main conclusion is that they are a partial success. The best results seem to have been in cases involving smaller sums of money, with at least an initial decline in the number of claims reaching certain courts; the Queen’s Bench Division of the High Court saw its caseload fall by nearly a fifth in the first year. Many lawyers also think that the duty on parties to cooperate has worked well, as settlements are often reached during the pre-action protocol period; the so-called Part 36, which enables either party to propose settlement at any stage, has also received much praise.
The problems, however, show the difficulty of making public policy both in technical respects and as an attempt to change a working or even wider culture. In particular, costs have gone up, with lawyers preparing cases in detail irrespective of whether or not pre-trial settlement is reached; costs are now front-loaded. Secondly, the time taken for cases involving smaller claims is on average about 13 months, and according to several analysts Woolf’s conclusion that lawyers were the main cause of delays and complications was somewhat hasty. Under the earlier system, lawyers would often settle without having to prepare detailed documents, but now even the initial letters have become something of an industry in themselves. Further delays are caused by the time it takes to identify suitable experts and obtain appropriate information from them, and lawyers accustomed to the adversarial legal system have not taken readily to the idea of single experts. On top of that, outside London the need for suitably experienced judges has sometimes caused additional delays.
One area where the reforms have made little difference is the volume of higher-level financial litigation, even if some large businesses now find the process so expensive that they settle almost every dispute outside the courts. Some corporates have taken to what one lawyer calls “blackmailing” opponents with threats of litigation, so that the other parties settle.
Some of the problems can be addressed without apparent difficulty. For example, the Judicial College, formerly the Judicial Studies Board, holds training days for judges; with many of the senior judiciary making a point of being accessible to their colleagues in the lower courts whether at such events or elsewhere, information and advice can flow freely.
More intractable problems, however, have to do with political will and the wider public culture. None of the five British governments which have held office since the Woolf report appeared has even attempted to fund the up-to-date IT system which is essential for the system to work; Woolf himself says that in the current economic climate new funding for that is unlikely to be approved. Thirdly, civil legal aid was effectively ended in 1995, when conditional fee (also called “no win no fee”) arrangements were finalised. The Access to Justice Act 1999 abolished legal aid for personal injury cases; although the move was not connected with Woolf’s proposals, it has created an incentive for lawyers to cherry-pick cases which they are sure of winning. That restricts ordinary people’s access to justice and could also mean that difficult cases which could set precedents or otherwise develop the law may not reach the courts at all.
Conditional fees, nevertheless, are now widely used in other Commonwealth jurisdictions, such as South Africa, and parts of Canada; they also figure in the United States. In the English system, fixed-cost procedures, for their part, hit poorer claimants hardest; in fact they do not even include lawyers’ fees. Poor claimants also face a large proportion of repossession and debt orders, and there is evidence that certain courts have even recovered more than they cost.
Even non-court proceedings, however desirable, can raise awkward issues. Arbitration seems to have become a relatively standard element in various types of business contracts, but in other types of cases mediation is so strongly expected before litigation is considered that the term “mediation coercion” has emerged. In addition, non-court settlements tend not to address genuine and possibly justified feelings of injustice or wrong. Moreover, the contending parties themselves are frequently responsible for delays, and they often undertake mediation not with a view to reaching early settlement but so as to avoid the costs of litigation. As for civil trials themselves, the transformation of judges into trial managers could connote the beginnings of a move away from the adversarial judicial system and towards the beginnings of an inquisitorial one, at least in civil matters.
Irrespective of the problems though, a return to the old ways is not foreseeable, and the reforms have been at least partly copied in several civil systems. In April 2009, Hong Kong introduced a version without pre-action protocols and front-loading. Woolf himself has called on English judges to enforce the procedures more strictly, and has cited a Singapore judge who sentenced a time-wasting lawyer to three months in prison. As one commentator says, this revolution has only just begun. In addition, India is some way ahead of various other jurisdictions in that almost all High Courts have had mediation centres annexed to them, where litigants can receive mediation services free of charge; this addition to the civil process was first introduced in 2005. As for other aspects of India’s civil system, it could be that somewhere in the upper reaches of the Indian judiciary India’s own Woolf stalks yet unseen.
(Email: >arvind.sivaramakrishnan@thehindu.co.in )
