Access to justice. Settlement is the name of the game
8 June 1996
19 November 2013
17 October 2013
7 October 2013
19 June 2013
18 November 2013
Rarely can a report which is more than 300 pages long and hopes to cater for so many different interest groups have met with such initial widespread support.
By seeking out the views of a wide range of groups, associations, firms and individuals, Lord Woolf and his team have been able to neutralise many concerns in advance.
There are individual aspects of the Access to Justice report which will not meet with support, but Lord Woolf cannot please everyone and the proof of this particular pudding will be in the eating.
The broad message the Master of the Rolls is seeking to ram home to the profession and the judiciary is that clients do not have the desire or the appetite for a protracted and expensive journey through the legal system with an uncertain trial destination at the end.
What they want, he says, is a commercial, certain resolution to their disputes with the minimum of fuss, delay and expense. In many cases this is best achieved by a settlement, rather than litigation culminating in a trial.
Lord Woolf's reminder that the focus should be settlement not trial is welcome. For too long many cases have been treated and handled on the assumption that they are going to trial. That assumption is false in the majority of cases.
Often the most fundamental questions about a case should be how it can be settled, when and on what terms.
The recommendations contained in the report, if implemented by the profession and the judiciary, will ensure that the question of settlement is never far from the parties' minds.
In multi-track cases, the case management conference could be used as an effective springboard for settlement talks.
Under this procedure, the solicitors must have prepared statements of issues by the conference stage and should attend court armed with details of the costs incurred to date and the costs that are likely to be incurred until trial. Their clients must also attend.
At this stage, Lord Woolf envisages that the procedural judge will ask what steps have been taken towards settlement and whether some kind of facilitated settlement in the form of alternative dispute resolution (ADR) would help.
This kind of intervention may break down any impasse which has arisen because neither party has been willing to make the first move.
If settlement talks break down, with or without ADR, it should be clear that the decision was reached on a fully informed basis, with the clients proceeding with their eyes open and aware of the likely consequences.
At least the track ahead should be made more certain by this procedure. A timetable for the case would have been set at the case management conference, the issues between the parties clarified and then decisions taken about the extent of witness statements, experts' reports and discovery.
While the destination awaiting them in the form of a trial will still be uncertain when compared to a settlement, at least clients will know how they will get to that destination and how much it is likely to cost along the way.
Apart from these pluses for the clients, solicitors should benefit as well.
The new system - which focuses on settlement, simplified statements of case, case management conferences, more witness summaries, reduced discovery, increased paper determinations and shortened trials - expands the potential for litigation solicitors, particularly solicitor advocates.
Overall the report is to be welcomed. It is now up to the legal profession to seize the opportunities which Lord Woolf has made available to it.