The emphasis of the new rules is on avoiding litigation through pre-trial settlements. Litigation is to be viewed as a last resort, with the court having a continuing obligation to encourage settlement.
In order to address the issue of complexity there has been an attempt to write the new rules in plain English, replacing old-fashioned terminology with more accessible terms. Lord Woolf hoped that the change in language would help to be open and fair according the overriding objective and the new rules. Complexity is also reduced by there being only one set of rules and only one claim form, replacing the writ for the High Court and the summons for the County Court. The procedure for starting an action is therefore undoubtedly simpler than under the old system.
The pre-trial procedure is the most important area of the civil process, since few cases come to trial. In order to push parties into behaving reasonably during the pre-trial stage, Lord Woolf recommended the development of pre-action protocols to lay down a code of conduct for this stage of the proceedings. The pre-action protocols that have been produced cover areas of practice such as personal injury, medical negligence and housing cases. They aim to encourage a settlement before proceedings have commenced and an earlier and fuller exchange of information between the parties. The pre-action protocols seek to encourage a culture of openness between the parties, leading the parties to be better informed as to the merits of their case so that they will be in a position to settle cases fairly, reducing the need for litigation.
A further change that has been applied be the civil courts as a result of the new rules is the increase of use of Alternative Dispute Resolutions. There is a general statement in the new rules that the court’s duty to further the overriding objective be active case management includes both parties to use an alternative dispute resolution procedure and facilitating the use of that procedure. The parties will have to show that they genuinely attempted to resolve their dispute through ADR and are not just after a court hearing, as has been the tendency in the past.
The most significant innovation of the reforms is case management; the court will now be the active manager of the litigation. The main aim of this approach is to bring cases to trial quickly and efficiently. The court now has to allocate each case to the most appropriate track depending primarily on the financial value of the claim. The small claims track deals with actions with a value of less than £5,000, the fast-track deals with actions of a value between £5,000 and £15,000 and the multi-track deals with actions with a value higher than £15,000. The small claims track is a procedure used by county courts to deal with relatively small claims. It provides a cheap and simple mechanism for resolving small-scale consumer disputes. Fast-track cases will normally be dealt with by the county court. Under this track the maximum length of trial is normally one day, and should be held within thirty weeks of the original claim. Multi-track cases are sometimes heard in county courts, but most likely within the High Court, depending on the complexity of the case at hand. Unlike fast-track cases, the court does not automatically set a trial date; instead it will fix this as soon as it is practicable to do so.
One of the most significant changes to the civil system made be the Woolf reforms concerned the approach to legal costs. Under the old system there was a basic principle that the loser of the case paid the winner’s costs, however, with the new rules the judge can give sanctions to alter who pays what. Where a party has not complied with court directions, they can be penalised by being ordered to pay heavier costs, or by losing the right to have some or all of their costs paid.
These are just a few examples of the dramatic change the Civil Procedure Rules have had to the civil court system. A further change to the civil courts system is that the civil courts are in the process of introducing a new computer system; it is intended that the courts will move from a paper-based system to one where many communications take place electronically, for example statements and evidence being exchanged via email.
b) To what extent, if any, have the Civil Procedure Rules (1998) increased access to justice?
The use of pre-action protocols and claimant offers to encourage pre-trial settlements have been very successful. There has been an increase in earlier settlements of cases. This means that court is being used as a last resort, as Lord Woolf intended. This has been mainly achieved by cases being given earlier trial dates, which have encouraged litigants to settle their cases, rather than go into a trial and not being ready for it.
The reforms put considerable emphasis on the use of out-of-court settlements, which can have the advantage of providing a quick end to the dispute, and a reduction in costs. An article in the Times in January 2005 said that 80% of personal injury cases are now being settled through mediation, decreasing the court’s workload dramatically.
Unlike the success of increasing the use of ADR, many lawyers who have experienced the new laws are finding that the new system is just as expensive as the old. Because of the new rules and fixed costs in fast-track cases, solicitors are front loading their costs, meaning that they are adding on costs right from the beginning to ensure that they don’t lose out at a later stage. It is therefore debateable whether costs will ever be successfully reduced, no matter what the reform is.
Professor Zander felt that the reforms were fundamentally flawed, rather than prone to temporary hiccups, and deeply expressed his opinion of the reforms prior to their implementation.
Regarding the success of reducing the amount of delays, Lord Woolf’s view was that the main cause of delay was the way the adversarial system was played by the lawyers. Zander criticised this analysis, pointing out that it is only supported by ‘unsubstantiated opinion’ rather than real evidence, despite the fact that it forms the basis for most of the subsequent proposals. By contrast, Zander has drawn attention to research carried out for the Lord Chancellor’s Department in 1994 into the causes of delay. It identified seven causes: the type of case; the parties; the judiciary; court procedures; court administration; the lawyers, mainly due to pressure of work and inexperience; and external factors such as the difficulty of getting expert’s reports, including medical reports. Of these seven factors, the last two were felt to be the most significant. Not all the reasons for the delay were the fault of the system, for example, in some cases it may be necessary to wait for an accident victim’s medical condition to stabilise in order to assess the long-term prognosis. Accident victims in particular often do not seek legal advice until some time after the accident occurred.
Clearly, if Lord Woolf has wrongly diagnosed the causes of delay it is unlikely that his reforms have resolved these problems.
When looking at the enforcement of judgements, it continues to be a problem. The difficulties with enforcing civil judgements were leaving many claimants disillusioned with the legal system. The danger is that if the system of enforcement is not improved, creditors will look to other methods of securing payment.
Regarding sanctions, Zander has said that procedural timetables for the fast track are doomed to failure because of a huge proportion of firms will fail to keep to the prescribed timetables. If judges did impose severe sanctions when lawyers failed to comply with timetable deadlines, it would usually be the litigants rather than the lawyers who would be penalised. Professor Zander pointed out that, under the old rules, the lawyers were not good at time limits and that sanctions were unlikely to change that.
Some solicitors have said they were reluctant to apply for sanctions against those who did not stick to pre-action protocols. This was because they felt that the courts were unwilling to impose sanctions for non-compliance in all but the most serious cases, judges were inconsistent in their approach to sanctions and an application for sanctions was likely to cause more delays and additional costs.
On the subject of the small claims procedure, public confidence has increased, by proving that the legal system is not only accessible to the rich and powerful. The official statistics show that the recent rises in the small claims limit have not led, as many feared, to the county courts being inundated with new cases. There has only been a slight increase in the number of small claims cases. Most small claims litigants involved in relatively high value claims are satisfied with the experience. However, there are long-standing concerns about the small claims procedure, which have not been tackled by the Civil Procedure Rules.
It is the view taken by many that the small claims procedure is not simple enough; the process still puts a lot of pressure on participants, and the level of formality varies. The system is still largely used by small businesses, rather than by the individual consumer for whom it was set up. A consultation paper was issued in 1995 suggesting that, in limited cases, the judge might be given the power to award an additional sum of up to £135 to cover the cost of legal advice and assistance in preparation of the case. If this reform were to be introduced it might assist individual consumer to bring their cases.
Overall, the general feeling of the new Civil Procedure Rules is that some work needs to be completed but that is can be achieved; the reform of the civil justice system is generally a qualified success. There is more co-operation between the parties and more people are using ADR rather than settling at trial.
