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Woolf reforms in practice
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Woolf reforms in a nutshell

Civil Procedure Rules 1999

The Civil Procedure Rules that followed the Woolf Report created a common set of court procedure rules. There is now an identical procedure and jurisdiction in both the county court and High Court.

 

Any action may be started in the county court except defamation.

 

Cases valued at less than £15,000 (£50,000 in personal injuries cases) must start in the county court.

 

All actions now start with the issue of a "claim form".

 

Disclosure of documents

The rules create a duty on parties to disclose documents.

 

Strict timetables have to be followed for exchanging documents and replying to queries.

 

Early settlement encouraged

Litigation is to be avoided wherever possible by encouraging ADR and use of pre-action protocols; financial incentives (by way of costs) for both parties to settle either prior to trial or early in the trial.

 

The court can order a month's postponement to allow parties to settle, with substantial costs implications for rejecting offers to settle.

 

The tracks intended to reduce costs and time and prevent tactical procedures

Parties are forced to employ co-operative litigation where the judge manages the timescale of the case.

 

There are fixed costs for the fast-track, and cost estimates are subject to judicial approval on the multi-track.

 

This is thought to prevent the exploitation of poorer party by use of expensive procedure.

 

Cases valued at less than £15000 are allocated to fast-track with fixed costs and fixed timetable requiring cases to be heard within 30 weeks. This is a significant reform which has changed a lifetime of practice for solicitors.

 

Cases valued at more than £15000 allocated to multi-track procedure, and are judge lead in terms of case management.

 

A case can be moved between tracks if the case is complicated or too expensive to conduct in the High Court.

 

The Civil Procedure Rules

Started April 1999 organised how civil cases are dealt with.

 

The Woolf Reforms were predicted to produce a 'Big bang', but this failed to materialise

However, not just another tinkering with the rules.

Lord Justice Cresswell

'the wind of change is blowing strongly through the courts'.

Underlying bedrock principles and the results

What is new is that litigation should be viewed as a last resort, disputes should be resolved quickly by:

 

Pre action protocols, strict procedures that should be followed depending on the nature of the claim.

 

Offers to settle, parties should be encouraged to look for ways of settling disputes before court action.

 

ADR supported in the rules for early use, (and the establishment of court-based schemes such as those at Central London County Court and in the Commercial and Appeal Courts).

 

Result: Practitioners report that most of the requirements are working well.

 

ADR

The Centre for Dispute Resolution (CEDR) reported an increase of 50 per cent in mediations since April 1999.

 

They say:

There is a more co-operative approach, parties are less likely to adopt an adversarial approach.

 

One incentive is the expectation that courts will impose financial penalties.

 

Result: Aggressive behaviour largely disappeared; there has been a culture change.

 

Court control

Judges now have wide and discretionary judicial case-management powers, to set early trial dates and to refuse to move them.

 

This has lead to a curtailment of tactical applications and appeals.

 

Result: Changes generally finding favour with well-organised litigants. Judges are exercising increased powers selectively.

 

Old authorities discarded

New 'clean slate' approach

The principle set out in the Overriding Objective. [enabling the court to deal with cases justly] has changed litigants' approach to disputes.

 

Result: This has been described as revolutionary. The principles of dealing with cases justly and providing a level playing field did not appear in the old rules; it is being used effectively and justly.

 

Overall Result

New proceedings were initially down by 25 per cent generally and by over a third in the Royal Courts of Justice.

 

The question is are 'protocols' and 'offers to settle' working? or…

are actions delayed on wait-and see principle? Or…

are parties waiting for Court of Appeal review of the Law Commission proposals on general damages in personal injury claims?

 

In 2007 the landscape changed again and actions started to rise.

November 2007 update, number of cases rising again

For the first time since the implementation of the Woolf Reforms the number of civil cases started in the High Court jumped by 25% in a year, reaching its highest level since 1999.

Ministry of Justice research shows that the number of commercial cases in 2006 reached 61,691 – up from 49,442 the previous year.

It is possible that the economic climate and the increased availability of third-party funding were factors behind the increase, as were the effects Enterprise Act 2002, which widened the role for administrators to act for both unsecured and secured creditors.

 

Carrot and stick

Timetables for serving evidence are now applied, and there are sanctions for minor non-compliance.

 

However, courts accept that it is unjust to strike out cases or other evidence, except in extreme circumstances.

 

Senior judge recently expressed concern about courts' inflexibility in extending deadlines.

 

Bureaucratic delays

Delays and additional paperwork are created by such requirements as allocation and listing questionnaires.

 

Delays can occur when cases are transferred between ordinary county courts and trial centres.

 

The requirement to attend a short case-management conference is being dealt with by holding telephone conferences, which work very well, facilities for telephone and video hearings are improving rapidly.

 

Unfortunately some judges are not keen to use technology.

 

Result: There are still delays in issuing orders; and there are still more hearings than proportionate.

 

Rush to implement changes

The dovetailing of rules and procedures is not yet complete.

Link between rules, practice directions, protocols and forms is sometimes poor; by 2007 there were 45 amendments to the rules (since 1999).

 

There are some special problems with litigation that does not fall into the normal contract and negligence disputes e.g. landlord and tenant actions.

 

Result: Rules being adapted but they remain unsatisfactory.

 

Confusion

Central London County Court has issued its own case-management 'bible'.

 

The judiciary is trying to control local variations encouraging advance approval (by them) of pilot schemes, which are then monitored.

 

Some courts have four grades for summary assessment of costs, when the guidelines specify three.

 

Result: Local practices, if not practice directions, are emerging.

 

Costs will not be reduced

There is no cost reduction in cases that do not settle, in fact they rise.

 

Professor Zander:

'costs may increase, due to:

Protocols and tight court timetables requiring more work early, especially for defendants (the 'frontload');

 

Extra hearings which the fee-earner in charge of the case is expected to attend'.

Result: Too early to tell if Zander is right.

 

Insufficient resources for new technology

Need for secure e-mail for serving documents.

 

Case-management software and document scanning facilities needed.

 

Burgess v British Steel (2000)

Payments into court should still be taken very seriously; non-acceptance on the ground that the claimant wanted to clear his name on an allegation of malingering did not protect him in costs when a payment in was not beaten at trial.

 

Emerging principles

Breeze v J Stacey & Sons Ltd (1999)

Opponents should hand back privileged documents that have been mistakenly disclosed

Expert evidence

Expert evidence is being severely curtailed because…

Experts are expensive, they frequently contribute to delay,
Too often they agree at the court door,
Above all too many give evidence in a partisan way.

There has been considerable support for the reforms that move towards
the court-appointed expert, adopted in most civil law inquisitorial jurisdictions.

 

Court appointed experts lead to swifter cheaper justice

 

Expert evidence will only be allowed when necessary to help the court;

Single joint experts will be the norm in lower-value claims;

Extensive case management powers to allow judges to control which types of expert may prepare a report or give oral evidence, when, how, and at what cost;

Early disclosure of expert reports, lead to much greater use of questions and discussions between like experts in order to narrow areas of disagreement, and to minimise the need for oral expert evidence at trial.

Instructing single joint experts has taken off.

  • 65 per cent of experts now receive joint instructions.

  • New instructions to experts have been reduced by about one third

  • Many experts are relishing their newly emphasised independent role

  • Some courts outlaw psychiatric, employment, care, and accountancy experts

  • Trying to cap defendants ''experts' fees to the Legal Aid Board limit for the claimant's expert, regardless of who pays at the end of the day

  • Disallowing experts' cancellation fees altogether

  • Questions and expert meetings being better arranged and controlled

S (a minor) v Birmingham Health Authority (1999)

It was decided on appeal that restricting expert evidence to a single joint expert too early in a clinical negligence case could be unjust.

Costs

Not much judicial interpretation.

Earlier and more frequent settlements and summary assessments means the Supreme Court Taxing Office is short of work.

 

Piglowska v Piglowska (1999)

Piglowska is a family law case, but the court provided useful guidance generally on proportionality. Litigants should not pursue cases that are outweighed by the costs.

 

In Piglowska, the costs in a claim to settle the assets of the marriage wiped out the matrimonial assets.

 

Results overall

Lawyers are still able to make a living while settling cases early and appropriately.

 

It is very difficult to separate out the effect of the reforms from the funding of civil litigation.

There seems no reason to continue to have a High Court and a county court, sitting on top of the tracking system and different levels of judges.

 

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