A year of revolution

It has been nearly three years since Lord Woolf published his final report on access to justice, designed to radically reform the civil justice system.

Yet as the April deadline for introducing the changes approaches, fears are rising over the insubstantial IT support in civil courts and a severe lack of piloting for new procedures such as pre-action protocols, which will encourage use of a single expert witness for both sides, and alternative dispute resolution (ADR).

Law Society president, Michael Mathews says: “There is a fear that courts are not geared up to do it, the IT systems are not there.”

Fast-track trials with fixed costs are due to begin in April, but the pre-trial cost regime has yet to be determined by the Government.

Teething problems are also forecast for the amalgamation of the Rules of the Supreme Court and the County Court Rules to form the Civil Procedure Rules, which begins this month and is scheduled to be concluded in April.

Vicki Chapman, Legal Action Group's policy director, says that so far only the core of the new rules have been rewritten: “Courts will be working out of three books until the rules have been merged.”

LEGAL AID PROVISIONS

This year will see the Government preparing for a fundamental overhaul of the way legal aid is delivered.

The Access to Justice Bill – due to become law this year – set a January 2000 deadline for replacing the Legal Aid Board (LAB) with a Legal Services Commission (LSC), made up of a Community Legal Service (CLS) and a Criminal Defence Service (CDS).

A consultation paper on the CLS is due early this year. The LAB will continue to oversee the franchising of legal aid advice and assistance this year.

Law firms have until March to apply for the first round of legal aid contracts, which will be available from January 2000.

RIGHTS OF AUDIENCE

The most controversial provisions in the Access to Justice Bill are arguably those concerning rights of audience.

These will give all lawyers access to the higher courts, barristers the right to conduct litigation, and the Lord Chancellor exclusive power to meddle with professional bodies' rules if they restrict such rights.

Bar Council spokesman Jon McLeod insists that the Bar welcomes the potential competition, but says it is fiercely opposed to the Lord Chancellor's proposed new power which, he says, would adversely affect the independence of the Bar and the judiciary.

“The apartheid government in South Africa tried to give itself the power to intervene in the rules of professional bodies and it was strongly resisted. I would only hope the Lord Chancellor is open to suggestion on this matter,” he says.

Although these reforms have been criticised by some senior judges and barristers, a Lord Chancellor's Department (LCD) spokesman says the Government's massive majority should ensure that the entire Bill will become law.

Law Society spokesman David McNeill says that if the Bill is passed, the onerous training requirements for solicitor advocates would have to be changed.

An announcement on the issue is expected later this year.

KITE-MARKING FOR CHAMBERS

The Bar Council acknowledges that 1999 is likely to be difficult for barristers, particularly if rights of audience are extended.

“People have been predicting the Bar's demise for 15 years,” says McLeod. “Numbers may dwindle, but the profession will survive. Barristers will have to adapt in ways which may see some of their working practices changing out of all recognition.”

These changes include a voluntary kite-marking system for chambers, which is due to come into being this summer (see column, page 17) and the possibility of giving members of the public greater direct access to barristers.

THE FUTURE OF THE OSS

Many predict 1999 will be make or break year for the Office for the Supervision of Solicitors (OSS), the profession's self-regulatory body which has been lambasted over delays in handling complaints.

Marlene Winfield, senior policy officer for legal services at the National Consumer Council, has repeatedly called for an end to the OSS. She says: “Law Society rules are either not tough or not specific enough.”

The Law Society is due to consider the future of the OSS in an internal review early this year and pressure is mounting for it to be replaced by an independent regulatory body, staffed by a mixture of lay and professional people.

INSURING THE PROFESSION

The fate of the Solicitors Indemnity Fund (SIF) could finally be decided this month when the Law Society discusses the feasibility of a mutual indemnity fund co-existing with an open market scheme.

Although many remain sceptical that the issue will be resolved in the foreseeable future, McNeill insists the matter will be sorted out by spring at the latest.

Even if a decision is made this month, the new system is unlikely to be introduced before September – the start of the next indemnity year.

The Law Society council's sole practitioner representative, Angela Deacon, says the increase in SIF contributions could help kill off thousands of firms: “I'd say around 10 per cent of small firms won't make it to the year 2000.”

Whatever the society decides, the compulsory insurance scheme faces a troubled future. SIF's head of communications, Sharon Bolton, admits SIF will find it hard to compete with open market insurers.

Solicitor Michael Dalton will throw a fly in the ointment when he takes the issue to judicial review this year and, he hopes, to the European Court of Justice, on the grounds that the Law Society has a monopoly on the indemnity fund and is therefore contravening the Treaty of Rome.

COMPETITION IN CONVEYANCING

Conveyancing solicitors are likely to feel the squeeze this year as competition becomes even stiffer.

Mortgage lenders have renewed talks with the Government to reactivate the authorised conveyancing practitioners scheme to allow non-lawyers meeting certain criteria to offer conveyancing services. Estate agent Hambro Countrywide predicts it will increase the instructions it handles to a record 30,000 in 1999.

But is not all bad news. England's first Solicitor's Property Centre (SPC) is due to open early this year.

In June, the Law Society is set to tighten its conflict of interest rules. McNeill says this will prevent mortgage lenders using the solicitors of buyers as unpaid private investigators to spy on clients, and make them accept liability for events outside their control.

“The mortgage lenders have had their cake and eaten it for too long,” says McNeill.

But he admits the change could provoke lenders into setting up their own conveyancing outfits, further slowing down an already sluggish conveyancing system.

MP'S FORGE A WAY AHEAD

Under pressure from the Government, the Law Society's ban on multidisciplinary partnerships (MDPs) is poised to be swept aside this year, allowing lawyers to form partnerships with estate agents, accountants and the like.

Responses to a Law Society consultation paper on the issue are due in February.

“We're looking not at if they will be introduced but how they will be regulated. So yes, MDPs are definitely on their way,” McNeill says, adding that although a decision would be made, it was uncertain whether any partnerships would actually be set up this year.

While some see MDPs as an opportunity to cut costs and provide greater client choice, others fear they will threaten solicitors' independence and impartiality as well as creating a new strand of competition for legal services.

In the words of one solicitor: “Personally I'd rather go to bed with a snake than team up with an estate agent, but it is good that lawyers will have the choice.”

McNeill says: “We must ensure that a proper regulatory framework is put in place which will clearly outline a solicitor's duty.

“A client may want a one-stop-shop but we must ensure that legal advice is not contingent on the client using other aspects of the firm.”

CITY GEARS UP FOR EURO

The New Year is greeting City firms with two key issues: economic uncertainty and strategy for international growth.

“We are trying to get a steer on how the UK and other European economies will be going for the first six months,” says Tony Williams, managing partner at Clifford Chance.

While the City's 600-odd banks achieved a smooth conversion of securities and bank balances to the euro two weekends ago, there is much speculation as to how traders and investors will react to the new currency over coming weeks.

Most economists have cut growth forecasts, and even though they are not as susceptible to the boom and bust cycle as other businesses, City law firms remain cautious. “One has to assume we won't achieve the same levels of activity in 1999 that we saw last year,” says Anthony Salz, senior partner at Freshfields.

In such a climate, international City firms may feel tempted to rein in their expansion plans abroad. Leading firms remain adamant, however, that their long-term strategies must continue.

Salz says: “We have not lost confidence in what we believe clients want in the long-term – that is, effective, single-firm coverage in a number of financial centres. If there is a blip in the stock market, we're not going to let that stop us.”

JUDGING THE JUDICIARY

Judges also face big changes this year, including rigorous training to prepare them for the incorporation of the European Convention on Human Rights, affecting all areas of litigation. The Government has earmarked up to #4.5m for their training.

Following the Pinochet decision, Law Lords may be forced to declare interests and affiliations (see news analysis).