UK: A Change In The English Civil Justice System - The Woolf Reforms

Last Updated: 17 September 1997

"An efficient and cost effective justice system is also of vital importance to the commercial, financial and industrial life of this country" - Lord Woolf, "Access to Justice", Final Report Section 1.

Introduction

The civil justice system in England and Wales is about to undergo a change - whether this is in the nature of a radical revolution or a gentle evolution remains to be seen. In March 1994, Lord Woolf, was appointed by the Lord Chancellor of the then government to review the civil justice system in England and Wales with a view to improving access to justice. After a year of well publicised consultation, his interim report was published in June 1995 and in July 1996, his final report "Access to Justice" was published. The final report was accompanied by draft rules setting out a new, simpler procedural code that will apply to civil litigation in England and Wales.

"Access to Justice" contains sweeping proposals for the reform of English civil justice to combat the key problems of cost, delay and complexity. These stemmed from the often uncontrolled nature of the litigation process in this country which Lord Woolf referred to as the "Rolls Royce" approach to litigation. His solution (borrowing much from Continental Europe and some from the US) is to create a fundamentally different landscape in which control of the litigation process will pass from the parties and their lawyers to the courts.

However, since the publication of the final report, there has been a change of government. The new Lord Chancellor appointed Sir Peter Middleton in June 1997 to review the proposed reforms in particular to assess their workability and cost effectiveness. For the time being thus, there is questionmark over the future of Lord Woolf's proposals. Will the sweeping reforms receive approval or will they simply be watered down? There is a degree of uncertainty at present but it is hoped that the positive momentum for change throughout the judiciary and the legal profession will be maintained.

The new landscape

If Lord Woolf's recommendations are fully implemented, the new landscape of civil litigation will look like this:

  • Litigation will be avoided wherever possible;
  • Litigation will be less adversarial and more co-operative;
  • Litigation will be less complex;
  • the timescale of litigation will be shorter and more certain;
  • the cost of litigation will be more affordable, more predictable and more in proportion to the value and complexity of individual cases.

Case Management

This is the lynch pin of Lord Woolf's new system - ultimate responsibility for management of civil litigation will move from the litigants to the courts. The court, and not the lawyers, will in future call the shots and control the progress of the case to trial. While this is a revolutionary concept in England and Wales, it is not completely unknown and specific substantial litigation (such as that involving Lloyd's) has been managed in a similar way by the Commercial Court and the same is true of cases in the Official Referees' Court (which primarily deals with construction cases).

This case-management will start off with a procedural judge allocating each case to a "track" and to a particular court. He will also urge the parties to identify the issues at an early stage and require them to consider settling some, if not all, by ADR.

Three Track System

The proposal is for a three track system:

  • small claims, for cases up to o3,000 but excluding personal injury. (This was introduced in January 1996);
  • fast track for straight-forward cases up to o10,000;
  • multi-track for cases above o10,000.

The Fast Track

Here, the reforms are at their most radical. Litigation at this level (o3,000 - o10,000) will be much quicker and cheaper with procedures tailored to the value of the claim. As the vast majority of English litigation, perhaps 90%, is over claims of o10,000 and often involves those least able to pay large litigation costs the aim of the proposals "Access to Justice" is most applicable here.

For larger cases, litigants will be able to opt into the fast track, at the judge's discretion, if they have a straightforward case valued at over o10,000.

Multi-track

The multi-track will include a wide range of cases from straight-forward cases just above the fast track limit to the most complex disputes involving claims for millions of pounds and multi-party actions with many claimants. The central principle remains that the court will manage every case but the type of management will vary according to the needs of the case.

This will start with a case management conference in order to set the agenda for the case before significant costs have been incurred and too much time has elapsed. At the conference, the procedural judge will narrow the issues, decide on the appropriate future work and case management required, set a trial date and timetable for each case and consider ADR and the question of costs. To make sure the lawyers don't get carried away, the client, or someone authorised on his behalf, must attend the conference. Estimates of costs for multi-track cases will be published by the court or agreed by the parties and approved by the courts.

Pleadings

There has been much criticism of the current system of overly formalised pleadings and so it is proposed that all proceedings will start with a claim which must be short and to the point. The defence must be more fully pleaded than at present, make the defendant's position clear on all issues of fact, and identify documents relied on. Statements of case (as they will be called) in this form would at a stroke dispense with the worst excesses of the current system such as keeping cards close to the chest, concealing lack of merit for as long as possible and not admitting or even denying an allegation without providing either reason or alternative versions.

One of Lord Woolf's aims was to modernise terminology. A change of language would underpin a change of attitude and a real change of practice to more openness. Pleadings will be replaced by "statement of case", "plaintiff" by "claimant" - these are just two examples.

Expert Witnesses

Lord Woolf's interim report quite rightly stated that two of the major generators of unnecessary costs in English civil litigation were uncontrolled discovery and expert evidence. His recommendations in relation to experts proved to be the most controversial. A large litigation support industry, generating a multi-million pound fee income, had grown up amongst professions such as accountants, architects and others. This went against all principles of proportionality and access to justice. Lord Woolf has therefore recommended that as a general principle the Court should use a single expert wherever the issue in question is within a substantially established area of knowledge and where it is not necessary for the Court to sample a range of opinions.

Discovery

This is renamed "disclosure" and in most cases is to be drastically restricted to make it more akin to the Continental (and Scottish) system.

  • Disclosure should be broadly restricted to essential documents only, on the fast track;
  • Strict control would be exercised by the Court over additional disclosure on the multi-track;
  • There would be a new criterion for selection of documents - "documents of which the parties are aware". This would avoid parties and their lawyers having to go through all the files and examine every single document before disclosing material the majority of which has minimal impact on the case;

There has been much criticism of the test of "awareness" in particular that it is a subjective test and would therefore positively encourage parties to turn a blind eye to documents which might damage their case or at the very least would encourage a slap-dash approach to disclosure. Lord Woolf however concluded that his recommendation, despite its imperfections offered not a perfect but a realistic balance between keeping disclosure in check while enabling it still to contribute to the achievement of justice.

Multiparty Actions

Unlike the position in some common law countries (e.g. the US), there are no specific rules of court in England and Wales for multiparty actions, often referred to as "class actions". Although the existing rules of the court provide means for dealing with these, they were not drafted with class actions in mind and therefore do not provide a sufficient answer to the problems that they create particularly in relation to cost and delay.

Lord Woolf has therefore recommended that where proceedings require collective treatment to a greater or lesser degree, provisions should be made for a multiparty situation (MPS) to be established. This should be achieved with minimum expense by requiring the parties (or the Legal Aid Board if it is involved) to make an application to the court with a formal declaration that the action meets the criteria for an MPS and the grounds to demonstrate this. It is also suggested that there should be power for the court itself to initiate such an application.

Information Technology

The role of information technology (IT) is central to many of the proposals. The main recommendations are

  • Judges should be fully equipped with the appropriate IT to enable them to manage cases.
  • There should be more widespread use of litigation support technology (document indexing, full text retrieval and document image processing) within the legal profession to assist with the document loads and preparation for trials; and, more specifically, to help cope with disclosure.
  • Telephone and video conferencing facilities should be used for case management.
  • Video recording and viewing facilities should also be introduced in appropriate centres to assist with the presentation of expert evidence.
  • There should be change in government policy over charges for reproducing primary legal source materials, especially statutes - in electronic form. (This has already been progressed and the liberal licensing position which had, in the past, applied to printed statutes now extends to their reproduction in electronic form).
  • A new independent representative IT strategy body should be set up to review, monitor and report both on medium and long term plans.

It is clear that if Lord Woolf's proposals are enacted in their entirety, "Access to Justice" will certainly be available for those involved in small cases, however with improved case management, IT and sensible disclosure of documents, England as a venue for international litigation should increase in popularity as the costs of bringing claims in the English Courts will be substantially reduced.

It is to be hoped, therefore, that the current re-look at the workability of the proposals does not dilute them so much that their teeth are removed and we end up with a sheep in Woolf's clothing.

This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained.

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