Although on the surface all solicitors wishing to be seen as forward-thinking are thoroughly supportive of the principles of civil justice reform, there is a suspicion that, in some parts of the City, there is a caveat.
Larger firms may think the reforms do not really affect them or their clients, because the real changes are for lower value, fast-track cases. Moreover, many of the new principles have already applied de facto in specialist jurisdictions in which they practise for some time.
This view is wrong for a number of reasons. Part one of the Civil Procedure Rules is revolutionary in its redefinition of what justice is and, if the reforms work, then the culture within which all cases, large or small, are resolved will change too.
Judicial case managers will apply new principles to all cases in the system, and the option of issuing generally in the Queen's Bench Division, to avoid the case management aspects of the specialist jurisdictions, will no longer exist.
The way in which volumes of smaller cases are processed will have significant implications for the management in major corporations. Take, for example, the requirement for statements of truth in statements of case and for a disclosure statement on discovery. Major employers will only be able to comply with the new rules if they have a structure in place to authorise signatories with sufficient power to ensure they can sign with confidence. Corporate law firms must prepare their major clients for the impact these changes will have on their bulk litigation.
In areas such as discovery, decisions made in the early years under the Civil Procedure Rules may determine how litigation is carried out in crucial cases such as product liability for the foreseeable future. For example, there is no doubt that the new measure of standard discovery will put an end to cases where the sheer volume of documents, which do not actually contain anything relevant, forces corporations into settling, rather than risk lengthy litigation.
This will only be so, however, if those corporations make sure that they comply fully and properly with the new requirements when the early decisions on their interpretation are being made. And, it is up to City firms – which have access to these businesses at a sufficiently senior level – to get this message across.
The extent to which alternative dispute resolution will be imposed rather than offered is not yet clear either. And perhaps more importantly, the new rules will to a large extent be virgin territory for satellite litigation. Problems also lie ahead in relation to how expert witnesses are instructed. It is generally considered that the new rules amount to an effective loss of privilege for the letter of instruction.
Perhaps the commitment to change in the City is more than skin deep but, if it isn't, some serious rethinking is necessary.