Reporting on Woolf

Lord Woolf's final report was published in July last year. In it he set himself the task of mapping out what he describes as a new landscape for civil litigation.

Crucial to this was a range of proposals for expert witnesses, whose present regime Lord Woolf sees as substantially responsible for the present high costs of civil litigation.

In his words: “It was a basic contention of my interim report that two of the major generators of unnecessary cost in civil litigation were uncontrolled discovery and expert evidence. No one has seriously challenged that contention.”

To address this problem, Lord Woolf recommended, in relation to expert evidence, that:

experts should have a clear status as independent advisers to the court;

experts should participate actively in the new system of judicial case management;

there should be wider scope for the court appointment of a single expert;

experts should meet in all cases; and

all instructions to experts should be made public.

But how have these recommendations fared? To answer this question it is necessary to distinguish between the formal moves for reform and the position on the ground.

First, as far as formal change is concerned, there is still a long way to go. Strictly speaking, the Woolf report is not an agreed blueprint, but rather a set of recommendations to the Lord Chancellor. It was almost a foregone conclusion that it would be accepted. Indeed, the whole Woolf process and the unprecedented consultation and PR exercise that led up to the report were clearly designed to mould opinion in favour of a radical agenda and pre-empt the resistance that has scuppered previous attempts at reform.

In practice, however, the blessing given to the report by Lord Mackay in his strategy document of last October was a necessary part of the process. And the Lord Chancellor makes it clear that there is scope for change in individual areas where “there might be better ways of achieving our objectives”. The future regime for experts provides a good example of this possible evolution and the new uncertainties that it is likely to create.

But, as is so often the case, the problems lie in the detail. Specifically, the Woolf recommendations require a completely new set of procedural rules. The draft rules have been out for consultation and differ in some key respects from the report.

In his report, for example, Lord Woolf strikes a balance between recourse to a single court-appointed expert and the present practice of experts appointed by the parties, which he recognises is likely to remain relevant in a range of large and technically complex disputes.

However, the thrust of the draft rules is to encourage judges to appoint single experts in the overwhelming majority of cases, regardless of the distinctions that Lord Woolf draws in his report. In the circumstances, there is a real risk that the proposed rules will increase costs and reduce the scope for early settlement.

Lord Mackay has set October 1998 as his target date for the full implementation of the Woolf recommendations and there are clearly a number of battles to be fought in the meantime in such areas as this.

Meanwhile, what of the position on the ground? Here the evidence is that in many fields the judiciary is already setting out, with a will, to put into practice what it can of the Woolf recommendations.

The Official Referees, for example, already have a developed system of case management and are increasingly imposing a strict programme for trial as part of a growing readiness to subject traditional litigation procedures to a pragmatic cost/benefit analysis at every stage.

One of the most outspoken Official Referees, His Honour Judge Peter Bowsher, has expressed the view that the greatest contribution to reducing costs and delay will come not from radically re-writing the rules of court, but simply from stricter and more sensitive programming, with the cooperation of lawyers on both sides.

Essential to this process is the flexible use of experts, and Judge Bowsher sees dangers in a new set of rules that could restrict the judge's freedom to make decisions in such areas in the best interests of justice.

While the judge's comments pre-date the current debate about new procedural rules, they are perhaps even more valid today. But can all judges be relied upon to make responsible use of the wide discretion that Judge Bowsher urges? Many have their doubts and so, probably, does Lord Woolf.

Writing in 1994, Andrew Bartlett QC described the lawyer/expert interface as “an area where uncertainty reigns”. One of Lord Woolf's aims is to remove that uncertainty and the cost and delay associated with it. How far he will succeed remains to be seen. There must be a risk that a dogmatic approach, which does not recognise the complexity of the expert's role, could lead to the baby being thrown out with the bath water.

The debate which his report has triggered, however, can only be beneficial to experts and those whom they serve.