BACKGROUND
A survey by the National Consumer Council in 1995 found out that three out of four people in serious legal disputes were dissatisfied with the civil justice system. They claim that the system was complicated, too slow, unwelcoming and outdated. This was five years of some innovation made to alleviate the negative effect of the delay in litigation identified by the Civil Justice Review (CJR) in 1988. There were concerns that the adversarial system was fast degenerating into an environment in which the litigation process is too often seen as a battlefield where no rules apply. In this environment, question of expense, delay, compromise and fairness have only a low priority. Many critics belief that the adversarial system has run into the sand, in that delay and cost are too often disproportionate to the difficulty of the issue and the amount at stake. It thus became clear that there was a need for a more radical approach to solve the problem. The solution now being followed to that problem requires a more interventionist judiciary: the trial judge as the trial manager (Henry L) Thermawear v Linton (1995) CA.
REVIEW OF THE CIVIL JUSTICE SYSTEM
In recent years the most radical changes to the civil process stems from Lord Woof’s Civil Justice Review Commissioned in 1994. His review gave an Interim Report in 1995 ‘Access to Justice’ which contained 124 recommendations and a final report in July 1996 with 303 recommendations (accompanied by a white paper) ‘Striking the balance – the future of legal Aid in England and Wales’. The whole process began again with the Woolf Review of the Civil Justice System. In March 1994, the Lord Chancellor set up the Woolf Inquiry to look at ways of improving the speed and accessibility of civil proceedings and reducing their cost.
Lord Woolf claimed that the civil justice had become excessively, slow, complex and expensive, costs and become disproportionate to the issues involved in litigation, there was undue complexity of law and court procedure, uncertainty about how much time and money would be required; and unfairness.
Objectives of the Reform
The objectives of the reform amongst other include encouraging parties to explore alternatives to the resolution of a dispute by a court, 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.
Lord Woof’s final report included detailed proposal on the fast track procedure, fast track costs, pre-action protocols, offers to settle, Medical negligence, Housing, Multi-law actions and judicial review. The report proposed partnership of judicial and administrative responsibility for civil justice. Lord Woolf claimed that if the recommendations are implemented, the changes would create a new landscape for English civil justice with the with parties being encouraged to use Alternative Dispute Resolution (ADR) would be where possible to avoid litigation; pre-litigation protocols on disclosure and expert evidence, including the use of single experts, instructed by both parties would ensure more co-operative and less adversarial litigation; single set of rules for the High Court and County Courts with all proceedings recommended to be commenced by a claim in the same way in any court was expected to remove complexity in cases; ensure certainty in the resolution of case it was recommended that all cases to progress to trial on a timetable set and monitored by the court; the cost of Litigation to be more affordable, more predictable, and more proportionate to the value and complexity of individual cases; the judges are expected to take account of parties’ financial circumstances in allocating cases to the appropriate track to create a level praying grounds for parties; line of judicial and administrative responsibility for the civil justice system to be clear; Heavier and more complex cases are to be concentrated at trial centres with adequate resources to deal with them; The court should use information technology (IT) to monitor the progress of litigation and there should be video and telephone conferencing facilities and Trial to take place on the date assigned; Judges are to be given training to encourage specialisation. Judges to have the administrative and technological support they need to manage cases effectively.
CRITICISM OF THE REPORT
The Lord Woolf’s proposals met with a great deal of acceptance and some criticisms. On of the critics, Professor Zander argued that there the problem with the system were due to deeply in-built features of English legal culture and very nature of the task of going to court. He was of the opinion that there was no research on what was wrong with the system before the recommendations.
The Labour Government asked Sir Peter Middleton to review the proposed reform and he reported in September 1997 which largely endorsed Woolf’s recommendations. Following the review, the government showed commitment to policies which involve making litigants bear more of the costs of court services, control of what lawyers charge, and encouraging a shift away from the courts and towards the cluster of private activities that come under the umbrella of ADR. The new role envisaged for the state involves the regulation of markets rather than the direct provision of services.
CIVIL PROCEDURE ACT 1997
The Civil Procedure Act 1997 laid out the new terrain for the implementation of the new system. Section 1 provided for one set of practice rules for the court of appeal, high court and county courts. Section 2 provided for a civil court rule committee to include people with experience in and knowledge of consumer affairs and lay advice. Section 6 establish a civil justice council comprising the Master of the Rolls (who in 1999 was Lord Woolf), judges, lawyers, consumer/lay advice and litigant representatives, to keep the civil justice under review and advice the Lord Chancellor and suggest research. Civil Procedure Rules 1998 produced one simplified set of rules for the high courts and county courts. The rules were accompanied by over 50 practice directions. In line with Woolf recommendations, the rules were drafted in plain English and introduced judicial case management, processing of cases depending on their value, complexity and importance. A central point was a pre-action protocol for cases which set standards and timetable for cases, require proper exchange of information, sought to make it easier to make realistic assessment of the case, encourage out-of-court settlement, and enable judges to apply sanctions if the rules were breached.
To achieve these objectives, cases would be allocated to one of three tracks in accordance with their financial value and complexity i.e. extended small claim jurisdiction, a new fact track with limited procedures and a new multi-track with appropriate judicial case management. The cases for the first two tracks have a financial limit of £5,000 and £15,000 respectively, while multi-track is for case above £15,000.00. The major features of these tracks are realistic table and increased case management by the courts.
IMPACT OF WOLF REFORM
The most fundamental changes in civil processes have radically altered the operation of the civil justice systems. Since the new rule came into force in 1999, they have been regularly reformed. The 39th update came into force on 4th April 2005. In the early days there was growth in the number of ADR and reduction in the number of cases. Justice Burton in 2000 identified - pre-action protocols, emphasis on encouraging settlement, judicial intervention part 24 strike out provisions and part 36 offer to settle. The three options for reforming appeal were; extension of the present time in order to discourage more than one appeal, refusing appeal with leave or abolishing the present system of giving no right to hearing, only appeals.
Years into the implementation of the new system, the views of some of the users are that the system is proofing more expensive than the old system for many litigants. The timetable usually imposed compels the parties to spend more time and money progressing claims to trial whether or not they expect to settle. Encouraging front end loading of cost may lead to more trials. Case management is excessively bureaucratic and makes much demand on parties and very poorly resources to finance the sort of increases in judicial staffing and information technology required for efficient performance.
The reform introduced unified form of procedure but there are two sorts of venues –the high court and the county court. This many observers believed was to preserve the special status of high court judges, the existence of specialist jurisdiction in each court and the problem of right of audience. Richard Harrison argued for unification. He recognised that unification of the civil court structure may be some time away and therefore proposed an interim practical solution – cases should be headed ‘Before the Civil Court’ and case management would be made in the spirit of Woolf.
Another issue crying for attention is the enforcement of Remedies. Statistics in the 2001 Green Paper Towards Effective Enforcement indicate that only 35% of all warrant of execution issued are paid and value of unpaid post-judgement debt is more than £600 annually. 35% of successful claimants received no part of the sum awarded to them.
In March 2003 the LCD issues while paper ‘Effective Enforcement’ in which strategy for reforming the current system by the following means was set:
a) Improving methods of recovering civil debts and establishing a more rigorous system of enforcement agents previously known bailiffs.
b) Bailiffs are currently not entitled to enter debtors home by force, they can only gain access to goods inside after being invited to enter
c) Under the white paper proposal, the enforcement agent, subject to the requirement to obtain a warrant from the court, will be able to use force to gain entry into domestic and commercial premises.
The Woolf Reforms are working to the extent that the pre-action protocols are promoting settlement of before application is made to the courts. Most cases are now settling earlier and fewer cases settling at the door of the court. Most cases are settled without hearing. However, cost have increased, or at least front-loaded. In cases where mediation has been attempted and agreement has not been reached, cost has been higher for the parties.
In an unpublished research by Prof. Glen it was revealed that the use of ADR has not increased in the many ways that was anticipated. The voluntary Pilot Scheme at the Central Lord County Court (CLCC) noticed and increase in the take-up of the scheme, but a decrease in the settlement rate from 62% to 40%. Woolf Reforms have led parties to mediate in order to avoid cost penalties, and in order to appear to co-operate with judicial direction, but they may be only ‘half-hearted’ in their attempt to negotiate a settlement.
An Automatic Referral to Mediation Scheme (ARMS) is now being piloted at CLCC. 100 cases are randomly assigned to mediation rather than a hearing in month. Parties who do not want to participate must justify their decision to a Judge. Hazel Geens unpuplished report indicates that 80% of the parties opted out of ARMS and those that participated achieved 66% success rate. She was of the view that mediation and other ADR options can only be a supplement to traditional settlement process, not a substitute for them. If ADR is to be encouraged, it should be part of a flexible and proportionate dispute resolution landscape.
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