Law reform. Holding the key to judicial reform

No one involved in the litigation process can dispute the catalogue of ills Lord Woolf lists in his interim Access to justice report which has brought attention to the problems of delay and expense he is trying to address. His prescription is, of course, a greater measure of judicial and court control.

But my concern is that without radical changes in the operation of the senior Bar the judiciary will not be able to play its full part in the reformed system which is likely to result from his proposals.

Woolf stresses that it is the system which is at fault, and that lawyers are as much trapped by this as the clients they represent.

He is critical of the legal profession when it comes to delay, concluding, for example, that “…it is for the advisers' convenience that many adjournments are agreed”. But in identifying the delays in progressing litigation and reaching settlement, Woolf takes no account of one factor which I believe is crucial.

Simply put, in major litigation a prime cause of the difficulties is the approach of some of the senior Bar to the proceedings. But with pleadings and particulars, the court clearly has to take a share of the blame for the sheer volume of what is produced.

But in one sense, this is no more than the result of an approach to pleadings that throws in everything but the kitchen sink. It also marks the breakdown of a relationship between Bar and Bench whereby the judge could once rely on counsel to sort out the wheat from the chaff and confine his pleadings to what is relevant and necessary – the “material facts” required by RSC Order 18.

The fact that even the most weighty and complex pleadings are still usually drafted by junior rather than leading counsel is, I believe, itself part of the problem.

In theory Woolf's proposals for early identification of issues should help in this area. They should also help to promote early settlement.

But one of the main problems bedevilling major costs in the period before trial is access to leading counsel, whose input is often crucial to key decisions about the direction and strategy of the case.

The best silks are clearly under enormous time pressure. This is at least partly the product of a system which is geared to maintaining leading counsels' forward order books in circumstances where the vast majority of cases do not fight.

Inevitably, the system depends on projections of future workload which are highly unreliable. If things go wrong and the work mushrooms the burden imposed on silks can become unsustainable.

As a result it can sometimes be impossible to grab leading counsel's attention long enough for him to give any serious consideration to the case, even at a decisive stage in its preparation.

How often have you, for example, tried to get access to leading counsel during a period when you thought he was at your disposal, only to find that he is just fitting in a quick three-day arbitration in Chicago or South Shields? And how do you explain this to the client?

Of course, this criticism does not apply to all chambers and the effective planning of leading counsel's diary is not a simple task. However, Bar Council guidelines appear to have done little to improve the situation. The result is often an enormous scramble at the 11th hour to get the case into shape for trial, a belated appreciation of the true strengths and weaknesses of the case and a settlement which could have been achieved six months or a year ago.

Woolf will no doubt argue that the reforms he proposes will make it impossible for this wasteful approach to continue. My fear is that this may not happen unless the senior Bar recognises that its working methods need to be overhauled in some areas and devises a commercially realistic way of doing so.

The laws of supply and demand have meant that hitherto the senior Bar has been largely immune to the downward fee pressure which has bitten so deep in other areas of the profession.

If they are to play their full part in operating the Woolf proposals, silks generally will have to roll their sleeves up and get involved in the detail of major cases at a far earlier stage. If this means a cut in fees, then it may be the necessary price to pay in the interests of the system and its users.

Alternatively, the client may simply look elsewhere. The senior Bar has retained its pre-eminence by maintaining a high reputation for quality and service. In the present climate of intense competition and rapid change, a failure to respond positively to the gauntlet thrown down by Woolf is likely to lead to the Bar becoming increasingly marginalised.

Christopher Clarke QC will put the case for the senior Bar in a future issue of The Lawyer.