Criticisms of the English legal system

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Lord Woolf, (then the Lord Chief Justice) imposed extensive reforms for the civil justice system and its courts in his “Access to Justice” report in 1996. In Chapter One of his report, under “Principles”, he clearly stated that the civil court service should be: “…fair, and just, ensuring litigants have equal opportunities to access their rights regardless of their resources in order to defend or assert them…

He also stated that applicants and defendants should be entitled to reasonable speed in the hearing of their case, and the proceedings made understandable to those who were involved.

Woolf’s report also laid foundations for the introduction of the Civil Procedure Rules (CPR) in 1999. According to an article by Rothwell^[1], she reports solicitors as stating that although there is a downside to the Civil Procedure Rules, the upside was “…a welcome improvement on proceedings…” – cases settled far more quickly than before and costs were less of an issue. The author also stated that all parties knew where they stood whilst participating in a case. One strong opponent of the reforms was quoted as saying that “…the system is too claimant-based”…Though surely if someone takes their case to Court as a Claimant they are seeking justice and fairness which Lord Woolf intended in his reforms?

Judge Rawkins in his article^[2] on Woolf’s “access to justice” attacks the theory six years down the line by arguing his point of the “twin evils” (costs and delay) that still continue to attack the reforms that were meant to be wholly implemented at this time.

Rawkins goes on to viciously assault the methods of funding arriving from the civil procedure rules that Woolf introduced. Far from fair and allowing access to all, Rawkins demolishes these statements by declaring the collapsed state of the legal aid system, the increased use of conditional fee claims, and claimants, who because they cannot secure funding, resulting to representing themselves in court with no legal guidance to aid or assist them. This he argues is not a fair service to the users the system is designed to protect.

Instead, users should resort to the process of mediation to avoid these pitfalls, where their case will be heard more quickly, the costs are far less, and an efficient and fairer service is available unlike the “antiquated” court system.

If this is the case, what does the Lord Chancellor’s Department^[3] make of it? Back in 2002, as the reforms were placed into practice, the department reported^[4] on the changes and its effects. Criticisms were made of slow litigation times, and muddled costs issues. Judges were to be deployed wherever they were most needed, and cases were persuaded to end at pre-trial rather than a full hearing.

Is this justice denied to those users?

To answer that question is to begin at the start of the civil justice system. According to Elliott and Quinn in their text on the legal system^[5], the civil court system has always been of a haphazard nature responding to “different things at different times”. Matters were not helped by the overlapping authority of the three different types of law being applied: – civilian law (Roman law), Equity and the Common Law. Back in the 18^th century, delays were a common occurrence, and proceedings only open to those with enough finances to begin or defend a case. To all extents, the system honoured the legal officers of the Courts in wealth and welfare, restricting those without the means to defend their rights unable to claim. This continued until the reforms in 1846, with the creation of county courts, supposedly to allow access to justice for all, fast-track efficiency and for them to offer an inexpensive service, including those in society who were previously unable to afford their right to justice. This sentiment echoes the modern version of Woolf’s reforms where he declares the same beliefs^[6].

However, Elliott and Quinn^[7] criticise Woolf’s ideals when he stated a desire for “efficiency with speed” and “making the courts more accessible”. Elliott and Quinn feared the promotion of efficiency using speed would conflict with the essence of justice and fairness. They also voiced their fears of “case floods” where the reforms would lead to overburdened civil courts unable to uphold the very aims Woolf emblazoned. Has this view changed into reality since 1996, when they raised their claims?

Greenslade in his article^[8] on the Woolf Report in 1996 reported claims of cases going through the court process months or years after the original hearing, due to incompetence on behalf of the solicitors, or their increased desire for litigation because of the financial gain to be had when discovering some small clause or argument in a case forcing another hearing to be held. This leads to yet more delays and expense – not for the solicitors, but for those who have to fund their case in the first place.

In due course, this escalates the problem of hearing cases in “good” time, due to the low number of judges and actual court rooms to hear the case being presented.^[9] Although this statement was written in 1997, whilst the reforms were going through consultation, the fact of time delays due to a lack of key court personnel and its embedded bureaucracy are still apparent today according to the judgment of Brooke, LJ in Barclays Mercantile Business Finance Ltd v Marsh^[10] where he stated that the reforms by Woolf were to “…prevent the delays caused by ancillary litigation…which were a feature of the system before the reforms came into force…”^[11]

Gifford and Salter go on to say, that a lack of “spare judges” cause parties to the case and its witnesses to unduly suffer from uncertainty and anxiety. They use an example of an accountant, who if you make an appointment to see one, you expect to see him at that time. However, with a scheduled court hearing, in reality, this is just a provisional timing: the case may not be heard for days or even months afterwards, according to the complexity of cases taking place before and the need for the judge to conclude on its merits by researching the law and case precedents.

Sedley, LJ in King v Daltry^[12] pointed out his frustration over the inefficiency and unfair delays in the county court process especially, caused by:

“…thousands of cases awaiting decisions on a variety of arguments…caused by uncertainty in the law and the complexity of the cases themselves…many of which should have been disposed of at the paper stage of an interlocutory judgement…”^[13]

Historically, the Civil Courts have been slow or reluctant to undergo change for the better, preferring to stay in its own “well-known” environment despite society and its people moving along at a much faster pace with increased litigation action. Before Woolf began his review of the civil court system, a Civil Justice Review was tenured in 1988 which painted a bleak picture of a system failing the “ordinary people” who sought a remedy from within the court, only to be frustrated and facing financial hardship due to lengthy delays. The Review promoted changes which were ignored in favour of staying with familiarity.^[14] Indeed, change was forced upon the system only by the intervention of Parliament who passed the Courts and Legal Services Act^[15] in 1990, which dictated for more cases to be heard at county court level from the High Court where increased expense was a burden for the parties to a case.

Woolf implemented change through extensive consultations in order to simplify what was well known to full of complex procedures and antiquated ideas. The result of this came to be known as the Civil Procedure Rules 1998^[16] following the 1997 Parliamentary Act.^[17] The rules and procedures are continually monitored and updated by the advisory body, the Civil Justice Council^[18] as incorporated by Parliament.

So what then for the “ordinary” claimants, defendants and witnesses to a case, if despite the regime changes, extensive reports, consultations and continual updating of rules if the end result is always the same – delays, inefficiency and unfairness caused by constant complexities and arguments?

The answer as laid out in the text on the Modern English Legal System by Smith and Bailey^[19], seems to be this, quoting from Sir Jacob^[20]:-

“…You have two adversaries in every civil dispute – someone asserting a right, someone denying it. Someone is contending for one thing, someone is contending against it…”

Whilst the adversarial system is a fundamental point of the English legal system, it raises problems of its own accord due to its very nature and function. Woolf recognised this in his report, when he stated that the adversarial approach is a major cause of significant delays and other problems associated with the civil justice system. Whilst he did not recommend the abolishment of the adversarial approach, he raised concerns in the lawyer’s approach of the process and the consequences caused by judges being “ill-prepared”.^[21] Therefore, it remains to this day, wholly down to the “officers of the court” who wield the sword of justice to ensure the system they uphold to protect remains efficient, fast and fair to its users.

Bibliography

Books

• Bailey, S.H. and Gunn, M.J, [1996], Smith and Bailey on the Modern English Legal System, 3^rd edn, London: Sweet and Maxwell
• Elliott, C and Quinn, F, [1996], English Legal System, London: Longman
• Gifford, D and Salter, J, [1997], Understanding the English Legal System, London: Cavendish Publishing Ltd
• Slapper, G and Kelly, D [2001], The English Legal System, 5^th edn, London: Cavendish Publishing Ltd

Internet

• http://web.lexis-nexis.com/xchange-international/
• http://www.civiljusticecouncil.gov.uk/117.htm
• http://www.dca.gov.uk/civil/final/overview.htm
• http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900041_en_1.htm
• http://www.opsi.gov.uk/ACTS/acts1997/1997012.htm
• http://www.opsi.gov.uk/si/si1998/19983132.htm

Footnotes

^[1] Rothwell, R, (2005, Oct 20), ‘LORD CHIEF JUSTICE: Passing Judgment’, The Law Gazette

^[2] District Judge Rawkins, J, (2005, 18 March), ‘Access to Justice – Diversions ahead’, New Law Journal, 155.7168 (419)

^[3] Now known as the “Department for Constitutional Affairs”

^[4] The Lord Chancellor’s Department, (2002, August), Civil Justice Reform Evaluation

^[5] Elliott, C, and Quinn, F, [1996], English Legal System, London: Longman

^[6] http://www.dca.gov.uk/civil/final/overview.htm

^[7] pg. 276, Elliott, C, and Quinn, F, [1996], English Legal System, London: Longman

^[8] Greenslade, D, [1996], The Woolf Report – Objections to Woolf, New Law Journal, Vol 146 No 6755 p 1147

^[9] pg. 111, Gifford, D, and Salter, J, [1997] Understanding the English Legal System, London: Cavendish Publishing

^[10] [2002] EWCA Civ 948

^[11] ibid, para 26

^[12] Court of Appeal (Civil Division), [2003] EWCA Civ 808

^[13] ibid. para 8

^[14] pg.259, Slapper, G and Kelly, D, [2001], The English Legal System, 5^th edn, London: Cavendish Publishing Ltd

^[15] http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900041_en_1.htm

^[16] http://www.opsi.gov.uk/si/si1998/19983132.htm

^[17] http://www.opsi.gov.uk/ACTS/acts1997/1997012.htm

^[18] http://www.civiljusticecouncil.gov.uk/117.htm

^[19] pg.783, Bailey, S.H and Gunn, M.J, [1996], Smith and Bailey on the Modern English Legal System, 3^rd edn, London: Sweet and Maxwell

^[20] Jacob, Sir Jack I.H., (1983), “The Adversary System of Civil Litigation”, City of London Law Review, 17,18

^[21] pg.784, Bailey, S.H and Gunn, M.J, [1996], Smith and Bailey on the Modern English Legal System, 3^rd edn, London: Sweet and Maxwell