UK: The Woolf At The Door

Last Updated: 4 March 1999
The Woolf At The Door

by Chris Hobbs and Nick Austin

This article was first published in Lloyd's List on 3.2.99.

In a little under three months time, on 26th April, the landscape with which those involved in civil litigation have become so familiar, if not so fond, will change irretrievably. For that is the day the much heralded reforms to civil litigation procedure, known as the Woolf reforms (after Lord Justice Woolf), come in to force.

Even a brief overview here of all of the rules would run to more column inches than this page, or the reader's patience, would allow. So we intend here briefly to outline the principal ways in which the commencement of proceedings will change and how, at the outset of a dispute, the tactical viewpoint of those seeking to resolve disputes in Court may be affected.

There remains an element of crystal ball-gazing in what follows. The full details of the new rules have yet to be set in stone and, in theory, are subject to tweaking before the implementation date. What is beyond doubt, however, is that the rules will come into force on 26th April whether anyone likes it or not. The key, therefore, is preparedness. As one District Judge recently wrote: "We will be ready but the unanswered question is whether you will be."

Overlaying the procedural changes is a concept known as the "overriding objective", a general principle to which the Court must always give effect in its application of the rules. The overriding objective is to deal with cases justly and this is achieved by, for example, ensuring that the parties are on an equal footing, saving expense, helping the parties to settle their dispute (quite how this will be achieved is not yet clear) and, significantly, fixing timetables or otherwise controlling the progression of the case through the Court.

This last method of dealing with cases stems from Lord Justice Woolf's belief that there is a public interest to be served by the Court controlling the progression of cases and ensuring they are dealt with expeditiously. Moreover, this public interest exists irrespective of the wishes of the parties. In other words, the Court will no longer tolerate cases being left to gather dust in a forgotten corner, even if implicitly sanctioned by the parties. Cases must be actively pursued and properly run, failing which the Court will intervene and either seek to drive the case along or dispose of it. It follows that a party must be prepared to progress a case with some vigour once formal proceedings have been commenced.

Under the new rules, a "Claimant" will commence proceedings by filing a "claim form", (as a writ will henceforth be known). The filing of a defence at the Court will then in most cases trigger the Court's new powers of case management. Soon after the defence is received, the Court will allocate the case to a particular method of handling, or "track", being either small claims, "multi-track" or "fast track".

Broadly, cases will be allocated to the small claims track where the amount claimed is under £5,000. Fast track procedure will be for those cases where less than £15,000 is claimed and multi-track where more than £15,000 is claimed. Although monetary value is the principal criteria for allocation to a track, it is by no means the only one as allocation is discretionary. The Court will consider, amongst other criteria, the nature of the remedy sought, the complexity of the case, the value of any counterclaim, the amount of oral evidence and, interestingly, the importance of the case to non-parties.

For allocation to take place the parties must complete a lengthy allocation questionnaire. The case will then continue under a fixed procedure depending upon the track to which it has been allocated.

Additionally, the Court will have much greater regard to the parties' behaviour before proceedings are commenced by requiring them to follow pre-action protocols of conduct. Different protocols will apply in different types of case but they all provide that the parties will have to complete certain steps, such as agreeing special damages and obtaining expert evidence, before proceedings are commenced.

Strategic considerations therefore arise at the pre-allocation stage when the parties are, in theory, attempting to follow the particular pre-action protocol that applies to their dispute.

As the Court is looking much more closely at the parties' conduct at this time, each side will want to make sure that they are behaving in a way that puts them to best advantage when it comes to the proceedings themselves. The Court is likely to take a dim view of inappropriate or obstructive behaviour, or simply any conduct which goes against the spirit of the new rules, before proceedings are commenced.

Such behaviour may come to haunt parties at the pre-allocation stage. There are detailed questions in the allocation questionnaire concerning the pre-action protocol and whether or not the parties have followed its terms. If one of them has not, repercussions may be felt after allocation in the directions which the Court has a wide discretion to impose.

A party will also have an opportunity to influence the Court's decision as to the relevant track for its case and as to the directions it might wish the Court to impose. Filling in the allocation questionnaire and attaching to it suitable submissions will in the future become an important tactical battle and will afford an opportunity for a party to influence procedure as it wishes. An allocation hearing is also possible, though it is envisaged that this will only take place in unusual cases.

These are but two examples of how those seeking redress through the Court may have to alter their tactical decisions at the outset of a dispute. No doubt many more strategic considerations will come to light as the rules bed in over the course of this year and beyond. In addition, many questions about the operation of some of the rules remain unanswered. For example, it is not yet clear from the rules how the current summary judgement procedure under Order 14 will be affected nor how its use as a Claimant's strategic tool may change.

How soon these questions are answered unfortunately bears no relation to the inevitability of what some have called the "Big Bang" on 26th April. The rules arrive then and there will be no turning back for anyone.

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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