Extensive Review of the Civil Justice System in England

Lord Woolf was appointed by the Lord Chancellor to carry out an extensive review of the Civil Justice System in England and Wales. He identified several problems regarding the old system and felt that it was in crisis. Woolf found that the Civil Justice System remained crippled by high costs, excessive delays and complexities of trials [1] . These problems have influenced major reforms which were intended to make enhancements in addition to create a more effective and efficient Civil Justice System. It is useful to begin with an explanation of the main recommendations put forward by Lord Woolf, before proceeding to explore the criticisms made by judges and academics relating to these new rules which will conclude whether these reforms have achieved their main objectives.

One of the arguments used against the former Civil Justice system was that it was too expensive. It could be argued that the system was in favour of wealthier litigants as many people were put off commencing claims as they were combined with considerably high litigation fees charged by lawyers. The new rules were enabled so that there could be fixed costs for cases on both fast-track and multi-track cases. Due to the complexity of civil procedures lawyers with legal expertise are required in order to draft proceeding and give advice on evidence. The duration of civil procedures also has an effect on the costs. To reduce the complexity of the civil procedures Woolf ensured that civil procedures were simplified for High Courts by producing a single set of rules.

Furthermore, another problem with the civil process was that it was too slow and delays often occurred. Larger claims increased the time length and take longer to be brought to trial. The most delays were found in personal injury and medical cases, as a result the lengthy process has had an impact of the financial burden on victims. In order to speed up the process and avoid delay Woolf introduced case management in hope to attain this.

Lord Woolf had assured that in his Access to Justice Report, there would be a new landscape of civil litigation. Woolf is convinced that in the future litigation will be of a less adversarial culture and be more cooperative. Since the new Civil Procedure Rules (CPR) came into force in 1999, the position of the civil courts has improved due to the considerable changes made by Woolf , but in spite of this, problems still remain. The purpose of the CPR were intended to eliminate unnecessary costs, delay and complexity and to underpin the civil justice by making it more efficient. The main aim of these rules is the ‘overriding objective.’ The CPR sets the overriding objective of the whole system- that rules should enable the courts to deal with cases ‘justly.’ Dealing with a case justly includes ensuring that parties are on equal footing [2] .

The development of the pre-action protocols was recommended by Woolf in turn to avoid litigation by the use of pre-settlement trials. The main aims of these procedures were to enable parties to have more pre-action contact between each other; a more comprehensive exchange of relevant information; an improved pre-action investigation; and finally a settlement before trial proceedings have commenced. [3] The pre-action protocols have been a key in encouraging the use of alternative resolution disputes.

In Woolf’s Access to Justice Report, the use of alternative resolution disputes (ADR) was greatly encouraged. It enable parties to explore ADR, introducing a single set of rules governing proceedings in the High Court and the County Courts, enabling a shortened timetable for cases to reach court and for the length of trials and more case management by judges. Following the CPR, the courts adopt a strict interpretation on whether people should be obliged to use ADR. (R (on the application of Coul) v Plymouth City Council 2001 EWCA CIv 1935)

There three different forms of alternative resolution disputes which involve procedures that are cheaper and quicker than ordinary civil courts. One form of ADR is mediation which consists of a third party, the mediator, who acts as a go-between the parties to reach a mutually acceptable settlement. Mediation is a voluntary process, if parties should fail, the parties will have preserved their positions [4] . Another form is Arbitration, it is governed by the Arbitration Act 1996, and involves an arbitrator who also assists the parties to resolve their disputes. Arbitration can occur in more than one way; firstly, by commercial disputes where contracts involve stating that disputes will b subject to an arbitrator; secondly, parties intentionally agree to go to the arbitrator to solve their disputes. Conciliation is a method that involves a third party, the conciliator, who is independent of the parties. The conciliator advises parties to resolve their disputes. Negotiation is the cheapest and quickest form of ADR. It involves a 3rd party, the negotiator, who tries to resolve the dispute by negotiating with the parties. Lawyers continue to negotiate on behalf of their clients even if court proceedings have not commenced. [5]

In addition, ADR is a useful method of solving disputes between parties without having to resort to the courts action. [6] They involve quick informal procedures which involve a neutral third party, who has the legal expertise in the relevant area of law who gives advice to assist the parties. On the other hand, ADR may not always lead to settlement as outcomes are less predictable, it could be sometimes seen as expensive and it could produce an imbalance between the parties.

The introduction of case management was perhaps the most significant reform. Originally, judges lacked a clearly defined role to manage court proceedings. However, the new rules now give judges the responsibility of managing cases to allow cases to be brought to trial quickly, efficiently and so that cases were dealt with justly. It could be argued, that case management has been successful in reducing the complexity of the civil procedures.

The aim of the Woolf report recommended that civil cases to be allocated to one of three tracks in order to reduce problems of delay and cost and prevent tactical procedures in the civil justice system. Parties had to complete questionnaires in order to be allocated to the appropriate track with the help of the allocation judge. [7]

Small claims track is a procedure which takes place in the County Court dealing with cases whereby parties are unable to resolve their disputes by other measures. There has not been any significant change to the principles small claims track, although the general jurisdictional limit is £5000. (Its previous jurisdictional limit was £3000). Fast-track cases are usually dealt with in the County Court. They are used for claims between £5000 and £15,000. The court is able to give direction for the management of a fast track case and sets a timetable for disclosure, the exchange of witness statements. [8] Multi-track cases deal with claims exceeding £15,000, and can be heard either in the County Court of the High Court, depending on the value and degree of the legal complexity of the case. Courts can also give direction for the management of a case in this track. Alternatively, in more serious cases, a judge will set a trial date or period where the trial will take place. [9]

Arguably, there are some positive effects of Woolf’s reforms. Fewer cases were brought before the courts parties avoided penalised for rejecting the use of ADR. In spite of this, there was a greater use of alternative resolution disputes. In 2003, the number of cases commenced in the Queens Bench Division and the County Court was found to be 14,191 at the lowest. [10]

Tamera Goriely and others carried out a study based on the effects of the Civil Justice Systems, which focused on the fast track cases. It was discovered that there was a less adversarial culture, so cases were now being run by the courts, rather than the parties. However, personal injury cases consisted of front-loading of work which meant that costs increased. [11]

Although, Woolf’s reforms have produced positive effects, it is however, questionable as to whether the reforms have been successful. There are still problems of delay, for example, trials still take long to be brought to court. Fast track cases can take up to 30 weeks on average for case to be resolved. Larger claims over £15,000 will take longer than expected; the complex nature of evidence will also result in a lengthy trial. Zander criticised that there are still issues of delays and the complexity of rules had increased since the CPR came into force, as a result the system is still not effective and do not meet the objectives recommended by Woolf. He believed that ‘Woolf put forward his reforms which have ended up costing litigants which have not reduced delays and have increased uncontrollably judicial discretion…’ [12]

There several criticisms which have been made by judges and academics about the system being inefficient. It could be argued that case management is ineffective due to the lack of government funding. In spite of this, judges have limited IT access and they are inadequately resourced and organised. The lack of IT access has been criticised by Brooke LJ, he argued that ‘…courts are not networked….we are miles behind most government departments and modern private sectors businesses.’ [13]

Professor Michael Zander attacked that the new CPR reforms failed to improve the civil justice system as more harm than good had been done. Zander commented that ‘The idea of the Civil Procedure Rules…was to cut the costs of civil litigation. But the scheme has been spectacularly unsuccessful in achieving its aims of bringing control, certainty and transparency.” [14] The front-loading of costs has also been identified by Zander as being a major problem of Woolf’s reforms.

Hazel Genn evaluated two court-based mediation schemes, the Automatic Referral to Mediation (ARM) and the voluntary mediation scheme. The ARM scheme was carried out in court between 2004 and 2005. [15] It consisted of the allocation of 100 cases per month and it was concluded that there was a high rate of objection with 82 per cent of PI cases referred to mediation an in PI cases, there was downfall in settlement rates. With regard to the voluntary mediation scheme which had been running in the court since 1996, it was concluded that there was a significant increase in the in demand after the judgement Dunnet v Railtrack in 2002, there were low rates of PI cases seeking to mediation, and there were low settlement rates. [16]

In conclusion, there are imbalanced arguments for and against new CPR as they have a similar to result ass the old Civil Justice System. The key reforms such as case management, has been successful in improving the complex civil procedure. However, it remains clear there are aspects where the requirement to meet the objectives of Woolf’s reforms have not been met, evidenced by critics who have identified that they were not as successful as hoped. Litigation costs for litigants will still remain a problem and it is likely that they would resort to ADR to solve disputes as this is far cheaper than court. Also, delays still exist, but the process has become faster due to the new rules. Overall, after considering the outcome of Lord Woolf commission, it could said that a great number of changes needed to be made to the old civil, procedures and this in turn has helped the Civil Justice System to ensure fairer procedures for litigants as well as judges.