The reduction in the number of cases coming to court on the North Eastern Circuit, as on other circuits, has largely been achieved by many more claims being settled at the pre-litigation stage. It should mean that – together with the provisions in the CPR for judges to impose sanctions to avoid undue delay – those cases that do go through should be dealt with more quickly.
But even with the reduced flow of cases and with three dedicated commercial judges now on the circuit – Judges McGonigal (Mercantile), Behrens (Chancery) and Langan (Mercantile and Chancery) – those cases that do reach court are often taking just as long as they always did to reach conclusion.
“It was an important emphasis of Woolf to speed up the timescales. There's been a bit of progress on that front, but it's fair to say that it hasn't been as significant as one would have hoped,” says Jonathan Sinclair, a litigation partner in Eversheds' Leeds office.
Sinclair says that the courts' power to impose sanctions is not being used as consistently as it could be to minimise undue delays. “We find ourselves frustrated in some cases when we're trying to push things along and the courts don't apply sanctions as readily as we might have hoped. If the issue of undue delay is going to be tackled, then the courts are going to have apply sanctions more rigorously,” he says.
Charles Rothwell, head of litigation at 24-partner Keeble Hawson, shares his frustration. He tells of a recent case in which the hearing was cancelled the day before because the judge was not going to be available; the case was consequently was delayed by six months. “It's not entirely an isolated incident and one has to say that it shouldn't happen under the new system,” he says. “There's a tremendous obligation on the litigating parties and their advisers to make sure their cases are fully in order and compliant with CPR, but it doesn't seem to be reciprocated on the part of the courts to ensure that cases are listed in a timely manner.”
An additional problem has been the proliferation of individual practice directions and rules issued by different courts – another scenario that the CPR reforms were supposed to address.
According to Addleshaws senior litigation partner Simon Kamstra, the Leeds Mercantile Court has reportedly dispensed with the allocation questionnaire. Across the Pennines, Manchester has published its own specific set of rules for cost assessments. Many local courts are publishing their own local practice directions and there are different protocols and draft protocols for pre-action conduct on different types of claim, as well as the different rules of the Commercial Court, the Technology and Construction Court, the Chancery division and so on.
Kamstra says: “Woolf was trying to stop it, but it's all blowing up again with the constant publishing of new practice directions and local practice directions from local judges. It's madness. It all started to go wrong when the Commercial Court published its own rules after Woolf. Then all the courts thought they should define their rules as well and suddenly it's back to square one. It's something I feel very strongly about, which has been twisted and driven off beam by local courts and divisions publishing their own rules.”