Research carried our for Lord Woolf’s review found that one side’s costs exceeded the amount in dispute in over 40 percent of cases where the claim was for under12500. The bill for one claim of just 2000 came to 69295. The survey concluded that the simplest cases often incurred the highest costs in proportion to the value of the claim.
Because of the complexity of the process, lawyers were usually needed and High Court litigation especially is not a game for the inexperienced, so barristers often draft the pleadings and advise on the evidence. This is expensive. The sheer length of civil proceeding also affected the size of the bill at the end.
Research carried out for Lord Woolf found the worst delays is personal injury and medical negligence cases, with these actions taking an average time of 54 and 61 months respectively. The average waiting time for a county court claim was 79 weeks. Time limits were laid down for every stage of an action but both lawyers and the courts disregarded them. Often time limits were waived by the lawyers to create an opportunity to negotiate, which was reasonable, but the problem was that there was no effective control of when and why it was done. The high court long vacation also contributed to delay.
Usually an out of court settlement is negotiated before the litigants ever reach the trial stage. For every 9000 personal injury cases commenced, only 300 were submitted for judgement. An out of court settlement can have advantage of providing a quick end to the dispute and a reduction in costs- although these start to build up from the time each side consults a lawyer, the trial itself is by far the most expensive part. For the claimant, a settlement means they are sure of getting something, and do not have to risk losing the case altogether and probably having to pay the other side’s costs as well as their own, but they must weigh this up against the chances of being awarded a better settlement if the case goes to trial and they win. The defendant risks the possibility that they might have own and therefore had to pay nothing, or that they may be paying more than the judge would have awarded if the claimant had won the case, against the chance that the claimant wins and is awarded more than the settlement would have cost. shortters, and repeat players. One shortters are individuals involved in litigation for probably the only time in their life, for whom the procedure is unfamiliar and traumatic, case is very important to them and tends to occupy most of their thoughts while it continues.
A third factor was highlighted by Hazel Genn’s 1987 study of negotiated settlements of accident claims. She found that having a non specialist lawyer could seriously prejudice a clients intersest when an out of court settlement is made. A non specialist may be unfamiliar with court procedure and reluctant to fight the case in court. Specialist lawyers on the other side may take advantage of this inexperience, putting on pressure for the acceptance of a low settlement.
Clearly these factors did affect the fairness of out of court settlements. In court the judge would treat the parties as equals, but for out of court negotiations one party often had a very obvious advantage.
The adversarial process:
Many problems resulted from the adversarial process which encouraged tactical manoeuvring rather than co operation. It would have been far simpler and cheaper for each side to state precisely what it alleged in the pleadings, disclose all the documents they held, and give the other side copies of their witness statements. Attitudes did appear to be slowly changing, with a growing appreciation that the public interest demanded justice be provided as quickly and economically as possible. Some of the procedural rules for example on expert witnesses, were changed and there was less scope for tactical manoeuvring.
Emphasis on oral evidence:
Too much emphasis was placed on oral evidence at trial. This may have been appropriate when juries were commonly used in civil proceedings but in the twentieth century much of the information the judge needed could be provided on paper and read before the trial. Oral evidence slowed down proceedings, adding to cost and delays.
There were also doubts about the usefulness of oral evidence. In particular there was a danger that the ordinary witness, often giving evidence years after the events occurred, would be so intimidated by the nature of the questioning and the formality of the proceeding that their evidence would appear far less credible than should be the case, while the evidence of an expert witness familiar with court room antics might well have an aura of authority which it did not deserve.
There had been a limited move away from oral evidence – for example, a 1995 Practice direction provided that witness statements would be accepted as the evidence- in- chief of that witness.
Lord Woolf himself was apt to claim that if implemented the changes would create a whole new landscape for English civil justice, with the following features:
Litigation to be avoided wherever possible
People to be encouraged to use alternative dispute resolution whenever possible, and to start court action as a last resort
Pre action protocol will enable parties to obtain information about the other sides case earlier from the other side, and will promote settlement
Information on source of ADR to be provided at all civil courts
Legal aid funding to be available for pre litigation resolution and ADR
Before commencing litigation both parties should be able to make offers to settle the whole or part of a dispute, supported by a special regime as to costs and higher rates of interests if not accepted
Litigation to be more adversarial and more co-operative
There should be an exception of openness and cooperation between parties from the outset, supported by pre litigation protocols on disclosure and expert evidence.
The court is to encourage the use of ADR at case management conferences and pre trial reviews, and to take into account whether parties have unreasonably refused to try ADR or have behaved unreasonably in the course of ADR
Litigation should be less complex
There should be a single set of rules for the high Court and County courts
All proceedings to be commenced by a claim in the same way in any court
There should be a unified code for appeals to the High Court against the decisions of other bodies
The time scale of litigation to be shorter and more certain
All cases to progress to trial on time table set and monitored by the court
On the fast track there should be fixed timetables, normally of no more than 30 weeks.
The court to apply strict sanctions to parties who do not comply with the procedures or timetables
Appeals from case management decisions to be kept to the minimum, and to be dealt with speed and efficiency
The cost litigation to be more affordable, more predictable, and more proportionate to the value and complexity of individual cases:
There should be fixed costs for fast track cases
Estimates of costs for multi track cases to be published by the court or agreed by the parties and approved by the court
There should be a special streamlined track for lower value or less complex multi track cases, where the procedure is as simple as possible, with appropriate budgets for costs
The court should issue guideline costs for classes of litigation where the procedure is uncomplicated and predictable
There should be a new test for the taxation of costs to further the overriding objective. There should be allowed such sum as is reasonable taking account of the interests of both parties to the taxation
Parties of limited financial means to be able to conduct litigation on a more equal footing:
Procedural judges should take account of the parties’ financial circumstances in allocating cases to the appropriate track
Limited procedures and tight timetables on the fast track, and judicial case management on the multi-track, to make it more difficult for wealthier parties to gain a tactical advantage over their opponents by additional expenditure
The new approach to be supported by more effective sanctions, including orders for costs in a fixed sum which are to be paid immediately
Lines of judicial and administrative responsibility for the civil justice system to be clear:
The Vice-Chancellor, as head of civil justice, to have overall responsibility for the civil justice system
The presiding judges on each circuit will exercise their responsibility for civil work in conjunction with the two Chancery judges, who will also oversee the business and mercantile lists
A nominated circuit judge will be responsible for the effective organization of each civil trial centre and its satellite courts
The new administrative structure will establish a partnership between the judiciary and the Court Service
The structure of the courts and the deployment of judges to be re- designed to meet the needs of litigants:
Heavier and more complex cases to be concentrated at trial centres with the resources needed to deal with work effectively. Housing cases, small claims, debt, and cases allocated to the fast track will continue to be dealt with at smaller local courts
The courts should use information Technology to monitor the progress of litigation and there should be video and telephone conferencing facilities
Trials to take place on the date assigned
Judges to be deployed effectively so that they can manage litigation in accordance with the new rules and protocols:
Judges to be given the training they need to manage cases. They should be encouraged to specialize in areas such as medical negligence and housing, and given appropriate training
Judges have to the administrative and technological support they need to manage cases effectively
Cases to be dealt with by the part of the system which is most appropriate. The distinctions between the County Courts and High Court and between the divisions of the High Court will be reduced signifance
The civil justice system to be more responsive to the needs of litigants:
Courts to provide advice and assistance to litigants through court-based or duty advice and assistance schemes
Courts to provide more information to litigants through leaflets, videos, telephone help lines and information technology
Court staff to provide information and help to litigants on how to progress their cases
There should be ongoing monitoring and research on litigants needs.
Response to Lord Woolf’s proposals:
Lord Woolf proposals met with with a great deal of acceptance and some criticism. In particular Professor Michael Zander mounted a campaign against them.
Zander seemed to argue that there was not very much wrong with the way that the civil justice system was working and that where there were problems, they were due to deeply in built features of English legal culture and the very nature of the task of going to trial. By neglecting this, the proposed reforms might make matters worse. He argued that lord Woolf had not commissioned any research on what caused delay but had simply assumed it was that lawyers operated under the adversarial system. Zander reffered to us research with highlighted inconsistency in judicial decisions when judges were given more discretion and case management responsibilities.