REVIEW OF THE CIVIL JUSTICE SYSTEM: THE WOOLF REPORT
BACKGROUND
Why the reform, 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. 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. 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 They claim that the system was complicated, too slow, unwelcoming and outdated. Many attempts were made to alleviate the situation, such as the Civil Justice review in 1988, the Heilbron Hodge Report in 1993 arising from the independent working party set up in 1992 by the Bar Council and the Law Society. The report of the CLR was largely ignored and with the exception of shift in the balance of work from the High Court to the county court (under the Courts and Legal Services Act (CLSA) 1990, no major changes came from its recommendation.
REVIEW OF THE CIVIL JUSTICE SYSTEM
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 improving the speed and accessibility of civil proceedings and reducing their cost. Lord Woolf noted that the main responsibility for the initiation and conduct of proceeding rested with the parties to each individual case, and it was normally the plaintiff (now claimant) who set the pace. This Woolf also noted that:
Without effective control...the adversarial process is likely to encourage an adversarial cultural and to degenerate 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. The consequence is that the expense is often excessive, disproportionate and unpredictable; and delay is frequently unreasonable (Access to Justice, Interim Report, 1995 P 7)
LORD WOOLF REPORT
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’
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, more case management by judges.
To achieve these objectives, cases would be allocated to one of three tracks, in accordance with their financial value and complexity as follows:
o An extended small claim jurisdiction for all cases up to £3,000 and later raised to £5,000, (except personal injury case)
o A new fact track with limited procedures, tight but realistic timetables and fixed costs, for all personal injury cases up to £10,000 and other cases between £5,000 and £15,000
o A new multi-track with appropriate judicial case management and timetables set and monitored by the court for cases over £10,000 and later raised to £15,000) and cases below that value which are sufficiently complex
The report proposed partnership of judicial and administrative responsibility for civil justice. 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. Lord Woolf claimed that if the recommendations are implemented, the changes would create a new landscape for English civil justice with the following features:
a) Litigation to be avoided where possible
To avoid litigation, parties are to be encouraged to use ADR whenever possible and court action as a last resort, ere-action protocol will allow parties to obtain information, Information on sources of ADR to be provided at all civil courts, Legal aid funding to be available for pre-litigation resolution and ADR and Before commencing litigation, both parties should be able to make offers to settle disputes
b) Litigation to be less adversarial and more co-operative
The expectation of openness and co-operation between parties from onset supported by pre-litigation protocols on disclosure and expert evidence, including the use of single experts, instructed by both parties are to be used whenever possible would ensure more co-operative and less adversarial litigation.
c) Litigation to be less complex
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. The claim and defence documents not to be technical but should make clear and real issues between parties. Unified code for appeals to the high court against decisions of other bodies
d) Timescale Of Litigation To Be Shorter And More Certain
To 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. For fast-track there should be fixed timetable, normally of no more than 30 weeks. The Court is expected to apply strict sanctions to parties who do not comply with procedures and timetable. Appeal from case management decisions to be kept to the minimum and to be dealt with speed and efficiency. The court should determine the length of the trial and what is to happen at the trial
e) The cost of Litigation to be more affordable, more predictable, and more proportionate to the value and complexity of individual cases
To achieve fixed cost for fast-track cases, estimates of cost of multi-tracks to be published by the court and agreed by the parties and approved by the court. A streamline track was also recommended for lower-value or less complex multi-track cases, where the procedure is as simple as possible, with appropriate budgets for cost. The court should issue guidelines cost for classes of litigation where the procedure is uncompromised and predictable. There should be a new test for the taxation of costs to further the overriding objective
f) Parties of Limited financial means to be able to conduct litigation on a more equal footing
The judges are expected to take account of parties’ financial circumstances in allocating cases to the appropriate track. They are also expected to adopt limited procedures and tight timetables on the fast track and judicial case management on multi-track to make it more difficult for wealthier parties to gain a tactical advantage over their opponents by additional expenditure. When deciding procedure and where parties are equal the court should be entitled to order for a more elaborate procedure where the parties agreed. The new approach to be supported by more effective sanction including orders for cost in a fixed sum which are to be paid immediately
g) Line of judicial and administrative responsibility for the civil justice system to be clear
The Vice Chancellor, as head of civil justice is to have overall responsibility for the civil justice. 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 merchantile lists. A nominated circuit judge will be responsible for the effective organisation of each civil trial centre and its satellite courts. The new administrative structures will establish a partnership between judiciary and the Court Service.
h) 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 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.
i) Judges to be deployed effectively so that they can manage litigation in accordance with the new rules and protocol
Judges are to be given training to encourage specialisation. Judges to have 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
j) The Civil Justice System to be more responsive to the needs of litigants
It was also recommended that courts should provide advice and assistance to litigants through court-based or duty advice assistance schemes. Courts are to also provide more information to litigants through leaflets, video, telephone help lines and information. Court staff to provide information and help litigants on how to progress their cases. There should be ongoing monitoring and research on litigant’s needs
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 mounted a campaign against them. 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.
The Lord Chancellor Department appears to be committed 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. What and whom is the civil justice system for? What social function does it serve? Why does the state accept responsibility for providing means of adjudicating civil disputes and right claims
CIVIL PROCEDURE ACT 1997
The Civil Procedure Act 1997 laid out the new terrain. 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. The rules were drafted in plain English, introduced judicial case management, were in line with Woolf’s recommendations, processed cased 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. A key tactic was the promotion of offers.
ACHIEVEMENTS
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. The39th 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 five problems, five benefits and three solutions. The problems are courts inflexibility in not allowing parties to agree to extension of times between themselves, the dangers of the judiciary pushing time Guillotines unto parties, the risk that lawyers and client could exploit standard disclosure to conceal important documents, single joint experts possibly usurping the role of judges; summary assessment of cost leading judges to making assumptions replacing detailed cost analysis. Benefits: 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.
Richard Burns 2000: The transition has been far smoother than many had anticipated and there have been a number of worthwhile gains. However, set against the ambition of Woolf, they were relative failure. The system is proofing more expensive than the old system for many litigant. 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.
Eversheds Survey 2000 54% of civil litigation process had improved, 52% of users believed that litigation was quicker; 22% thought that cases were lower; 24% believed they were getting better justice and 44% said they were not. Lack of resources was identified as major stumbling block and litigation was becoming unpopular and more people like the system.
Lovels 2000: 71% threat litigation as the last resort, low use of joint expert and low level of case management due to inadequate resources and use of summary assessment of cost was criticised.
process had improved, 52% of users believed that litigation was quicker; 22% thought that cases were lower; 24% believed they were getting better justice and 44% said they were not. Lack of resources was identified as major stumbling block and litigation was becoming unpopular and more people like the system.
Division of Work between High Court and County Courts After Wolf Reform
Woolf introduced unified form of procedure but there are two sort of venues –the high court and the county court 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.
Enforcement of Remedies
Statistics in the 2001 Green Paper Towards Effective Enforcement: 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.
Ø Begin with list of objectives and use as a template to judge the reform by the use of the criteria
Ø Learn some actual judgements, learn what tactics judges do, and can do. Use what was done with D v S with the case of your own.
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