Tell us your verdict: have the Woolf reforms worked?
Ten years ago I took on the task of looking at how we could reform our slow and costly civil justice system. The resulting proposals were enshrined in new civil procedure rules (CPR). They were intended to transform, and I believe did transform, the legal system. The object was to create a new way of conducting civil litigation in England and Wales.
It was generally accepted that the system was not working as it should. Most procedures had been established for nearly a century and change was very necessary. The system had become too adversarial, was too expensive, too uncertain and frequently there were appalling delays.
A decade on, what is the verdict on the reforms? It is generally accepted that they resulted in a substantial improvement. In his recent report, Review of Civil Litigation Costs, Preliminary Report, Lord Justice Jackson states: “Those reforms have brought huge benefits to civil litigants. Far more cases are settled before issue. Those cases which are contested proceed far more swiftly from issue to trial. We no longer have the repeated tragedy (for such it was) of meritorious claims being ‘struck out for want of prosecution’.
“The case management function, which the court has assumed following the Woolf reforms, prevents cases from being parked indefinitely whilst the parties or their lawyers attend to other matters. The creation of tracks for cases ensures that each type of case receives an appropriate allocation of resources and degree of attention from the court.
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“The fast-track ensures that lower-value cases are brought to trial with expedition and that the trial costs (although not pretrial costs) of such cases are fixed. The procedure offers in CPR Part 36, including claimants’ offers . . . has by common consent been a considerable success.”
But it is now time to re-evaluate. The change of culture that the reforms introduced needs to be strengthened. They were part of a process, not the completion of the journey, and changes by now would be needed in any case.
One primary objective, however, has not been achieved: to reduce costs generally. Costs other than those that were fixed not only remain obstinately high but in many instances have risen and remain an impediment to justice.
The availability of justice in any society is an important feature. It should be regarded as significant in relation to civil procedures as it is in crime. Claimants who have been injured should, if the circumstances justify this, be confident of a remedy at a proportionate cost. Commercial disputes have to be resolved efficiently and economically. The citizen needs to be able to challenge the legality of the activities of public bodies. If the State gives its citizens rights, the citizen has to be able to enforce those rights. It is no exaggeration to say that the health of a nation depends in part on the quality of its civil justice system.
In his report Lord Justice Jackson has masterfully surveyed the current situation. He has identified the causes of disproportionate expense. Part of the explanation is the actions of the Government after the reforms for which I am responsible. The costs that litigants are required to pay to the Government have soared. The almost complete replacement of legal aid by conditional fee agreements, and after-the-event insurance have in themselves increased expense, while at the same time enabling those who could not otherwise afford to litigate to do so.
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This has been a very retrograde step. Defendants can face huge, disproportionate and unjust costs. If the defendant wins, on the whole he is going to be out of pocket. And if he loses, he will face three sets of costs: his own, the success fee of the lawyers on the other side and the insurance premium.
The IT that was intended to be a central support of the reforms either has never been supplied or has arrived late and been ineffectual and over budget. The excellent has been the enemy of the good. Parts of the whole civil system have been chronically underresourced. However, it remains true that case management has resulted in frontloading of costs. In those cases where they settled earlier than they would otherwise have done, this is fully justified. But if a case settles at a later stage, greater expense may be caused.
One of Lord Justice Jackson’s tasks will be to ensure that case management is more productive in those cases where today it results in disproportionate expense. I would have liked to have introduced a docket system, particularly for High Court cases. But except in the very largest cases, the inevitable demands on High Court judges’ time ruled this out. Sometimes the problem was accommodating judges’ circuit commitments. There was also our tradition of judges not being specialists. Allocating a case to a judge at the outset has been a success and the benefits should be available to most significant litigation.
The method by which lawyers are retained also needs to be radically changed. The CPR introduced the need for lawyers to keep their clients fully informed as to the estimated costs of the proceedings. The position may have improved, but not sufficiently.
I was relying on the client controlling the costs that proceedings were running up. They have not exercised sufficient control. The desire to win at all costs has meant that there is still no proper control. The maximum costs recoverable should be subject to a proportionate cap in most cases. There is room for the substantial damages that are recovered in some personal injury cases to establish a fund to subsidise other cases. It is clear from Lord Justice Jackson’s report that he is prepared to consider radical change and it is radical change that is still needed.
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Great progress has been made in resolving disputes by mediation, which can be done in a way not possible if the case goes to trial and ends in a judgment. Those engaged in mediation have found it is a very constructive process. But rightly, the process does remain confidential and private. It certainly is not a substitute for a trial in all cases. However, one of its virtues is that if unsuccessful, parties can still go to the court for a final decision.
Eminent academics have expressed concern as to whether mediation is undermining the role and status of the courts in developing the law. My view is that these concerns are unjustified. The courts are still fully employed and struggling to cope with existing caseload on the resources available. There are plenty of judgments to develop the law as necessary. If the parties can resolve their dispute it must surely be right that they do so by whatever means are available, including mediation.
With the assistance of Lord Justice Jackson’s final report and the recognition by the Government that our system of civil justice must be fully resourced, I believe that we shall still be able to provide a system that is the envy of the common-law world. As in the past, we are in the fortunate position of having judges whose independence, integrity and intellect are the critical ingredients of any world-class system of justice.