Christopher Clarke QC, chair of COMBAR
27 June 1995
3 December 2013
Competition & Regulation Update: the test for declaration under part IIIA is dead; long live the new test
25 March 2014
5 March 2014
6 February 2014
16 July 2013
The philosophical foundation of Lord Woolf's report is clear: a civil justice system should produce just results by fair procedures at reasonable cost and speed. The plight into which our system has fallen is identified with equal clarity: fashioned for the last century it has been rendered nearly unworkable by pleadings which obscure rather than expound, discovery which swaps without revealing, and a pace dictated by the parties alone.
The remedy for these ills is to take case management out of control of the parties and put it into the hands of the court.
In multi-track cases judges and masters are to work in teams furthering the progress of the docket by a rolling programme of case management. This raises two questions:
Will the Treasury finance the necessary additional resources?
Will the personnel be available and able to manage?
The first depends on whether the Government can be persuaded that the investment is worth the return of reduction in overall cost. As to the second, the Lord Chancellor is consulting the judges, who will no doubt declare themselves ready for the task. But will more personnel be needed and where are they to come from?
The model for case management is that of a case management conference after the filing of a defence, conducted by the procedural judge, and a pre-trial review, conducted by the trial judge. These are to be attended by counsel or solicitor responsible for the case with, in each case, the lay client or his representative present.
The model also envisages the court should have an enlarged jurisdiction to give summary judgment on the application of either side on the grounds that a case has no chance of success. This is surely to be welcomed.
On discovery Lord Woolf has recognised the clamour for change by providing for "standard" discovery to be followed, but only if ordered, by discovery on a wider scale.
Lord Woolf proposes to give the court a free hand to order experts, including power to have one expert appointed by the court alone. Experts are to declare that their report includes everything material to the validity of their opinion. It will be professional misconduct for experts to accept instructions not to reach agreement with their counterparties, and once instructed to prepare a report for use in court, communications with the expert will not be privileged.
These recommendations are a breath of fresh air. But one should never underestimate the power of lawyers to work the system. Once relevance is abandoned as the sole criterion for discovery its confines become elastic.
The theme that runs through the report is that there needs to be a complete culture change. It is reflected in recommendation 74: "There should be a new ethos of co-operation on the part of the litigants and their legal representatives before proceedings are begun."
This is the one change which legislation cannot produce. It may be achieved but only if Lord Woolf's proposals are implemented as a whole and the brave new band of judicial case managers are up to the heavy burden that Lord Woolf imposes upon them.