Leigh Day & Co senior partner Martyn Day examines the mixed success of the Woolf reforms. Martyn Day is senior partner at personal injury firm Leigh Day & Co.
The purpose of the Woolf reforms was to speed up the legal process, cut red tape, and make it more user-friendly, with the aim of making litigation cheaper, particularly in smaller cases.
Four months after the introduction of the reforms, the changes have been wide-ranging. But has the new process been delivering against these goals?
Our difficulties are that we have had problems with defendants responding to claims within the periods set out in the protocols. Industrial accidents are a particular problem.
A number of judges are tending not to deal summarily with costs, putting the issue off to a more detailed assessment, rather wasting the time of the lawyers on both sides. Information on costs, required at various stages of the court process, is time-consuming to compile.
The county courts seem to be transferring cases to other courts to suit their own backlogs, causing extra expense in travelling for appointments. Telephonic hearings would resolve this, but our view is that this is largely pie in the sky.
The courts are becoming increasingly interventionist, including not accepting agreed orders. The problem is courts taking this step when they know little about the case. This can lead to significant additional wasting of time and costs.
Judges are also fixated with the issue of experts. They are savagely cutting out experts in many disciplines, even in catastrophic injury cases.
What is working about the reforms is that health trusts are making medical records more accessible sooner. However, in other areas, pre-action discovery is more spasmodic, with some insurers being better set up to deal with this than others.
The claimant's Part 36 offer to settle has proved to be a successful innovation, with defendants quite often agreeing to pay the proffered figure, with the implication that the claimants' lawyers need to ensure they are doing the work necessary to accurately assess valuation early. A review of 300 cases has shown that Part 36 offers (before issue) are disposing of more than 80 per cent fast track and up to 50 per cent of multi-track personal injury cases.
The strict timetables, once proceedings have been issued, have succeeded in putting pressure on defendants to respond to claims more quickly and to make offers earlier.
Generally, the defendants have tended to be less antagonistic and have been prepared to be more co-operative in the resolution of claims.
In turn, this has put a lot of pressure on the claimants' lawyers to be efficient with the speed of the process essential.
There seems to be good co-operation on instructing experts on quantum and then splitting the fees.
The judiciary, particularly at master/district judge level, are managing cases with vigour and finding the time to do this, including making orders on the court file on claims which are not subject to applications.
The new system differs in that there is now less reliance on counsel on fast track cases and lawyers are drafting their own claim forms and attending interlocutory hearings.
Our experience has been that counsel is involved in assessing the level of Part 36 offers in around 50 per cent of multi-track cases and in very few fast track cases.
There is more unbundling in terms of sharing the work with clients.
Although clients have always been the most important member of the team on any case, the requirements for statements of truth, and the need for detailed letters of claim and early quantum information, necessitates more communication at an earlier stage.
Standard letters and briefing packages are essential when a case is being worked on for longer as all issues need to be dealt with.
It is our experience that all issued cases are being fully "Woolfed". This has required intense work within a short period of time and has created a tension between issued and unissued cases.
We suspect that this accounts for the drop in cases being issued under the new rules as opposed to an inability to fill in a claim form.
Lawyers have to feel in control of their case-load and this should lead to smaller, better managed case loads.
This has to be good news for our clients.
Overall, therefore, this firm's experiences of the first four months of Woolf have been primarily positive albeit with some significant teething problems.