Craig Dunford compares and contrasts how closely Northern Irish reforms will follow the Woolf report for England and Wales. Craig Dunford is a solicitor at John McKee & Son.
As civil justice in England and Wales contemplates a future shaped by the Woolf Report, practitioners here in Northern Ireland are now wondering what the Lord Chancellor might have in store for us.
In February this year, Lord Irvine delivered the keynote address to the annual conference of the Bar Council of Northern Ireland. In summarising the trust of the Woolf reforms for England and Wales, he identified what he called four “main pillars”: an increase in the small claims limit to £5,000 (it is still £1,000 in Northern Ireland, and excludes personal injury actions); a “fast-track” procedure for cases worth up to £15,000; a “multi-track” regime for complex cases; and reform of the civil court fee structure.
These reforms will be the most radical shake-up in England and Wales for some 120 years. But much of what is proposed has been familiar practice here for many years. Take, for instance, the “fast-track” proposal. In Northern Ireland, it is already the case that any claim in contract or tort worth £15,000 or less must be brought in the county court (although, if it is particularly complex, it may be removed to the High Court).
Cases are started by way of “civil bill”. This equates roughly to an English county court default summons, but the claim is endorsed in much shorter form (seven or eight lines at the most), rather like a special endorsement on a High Court writ. There are no pleadings. If the defendant wants to contest the action, he simply serves a notice of intention to defend on the plaintiff and the court, and puts forward his arguments at the trial itself. If no notice of intention to defend is served, the plaintiff can get judgment in default “over the counter”, just as in England.
Compared to England, the procedure is cheaper and quicker. In all cases, if the parties have not formally told the court that the case is ready for trial within six months of the issue of the civil bill, the judge calls the parties before him and gives directions for the future conduct of the action.
Costs generally follow the event and are awarded on predetermined scales.
This is a truly “fast-track” procedure. And it works. In fact, to quote from Lord Irvine's address: “In many respects, Northern Ireland is ahead of England and is already more than half-way to having a tightly controlled fast track.”
This process is likely to be driven on considerably by the recently established Civil Justice Reform Group, chaired by Mr Justice Campbell.
We can also expect to see the possible introduction of conditional fees looked at closely, as well as the role of alternative dispute resolution. The rising costs of civil legal aid are as much of a concern here as they are in England, and the Court Service is expected to issue a Green Paper on legal aid in Northern Ireland in the autumn.
The area in which reforms are likely to follow the Woolf model most closely is High Court practice and procedure. Unlike England, it differs considerably from county court practice, which would make a unified civil procedure code that much more difficult to achieve. There is also the very important distinction in what might be called the “claims culture” within the two jurisdictions.
The general view – of those with experience of practice in both jurisdictions – is that people here are more inclined to go to law over a grievance or claim than in England.
There is also a tradition of running cases more closely to the wire before serious settlement discussions take place. The “cards on the table” approach is making only slow inroads in Northern Ireland – the function of a pleaded High Court defence is still regarded as simply to deny whatever is said in the Statement of Claim, rather than advance a positive alternative case.
Changes to the rules of procedure will only have the desired impact if there is a major shift in Northern Ireland's legal culture. That is, perhaps, the biggest challenge facing the Civil Justice Reform Group.