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Lord Woolf's and Lord Taylor's recent recommendations show that there is a new spirit abroad in the judiciary.
Hopefully this will lead to improved practices and to the more interventionist role of trial judges recommended by the Heilbron Committee. Certainly, the judiciary has been willing to improve its procedures to give more direction to litigation. A number of recent experiences have shown how judges are ready to work flexibly with practitioners to achieve common goals.
Following the Hazell/Hammersmith judgment in the House of Lords, an enormous volume of actions was begun in the Commercial Court, in which banks claimed restitution for sums advanced to local authorities under contracts held to have been void. The court appointed in succession Justices Steyn, Hirst and Hobhouse as trial judges in charge of the litigation, who imposed an order of leading cases and timetables that led to the orderly treatment of what might have been a chaotic fight to judgment. This process was adopted as a result of the practitioners and the courts working closely together not only in court, but also behind the scenes.
One of the recommendations of the Heilbron report was that a system of pre-trial reviews should be introduced whereby the court could take stock of the state of readiness of the action and impose a disciplined timetable for trial. This procedure has since been followed to good effect, especially in large cases such as those arising out of the Maxwell litigation. In such cases, Justices Rattee and Lindsay were appointed by the Vice Chancellor at an early stage and dealt with all interlocutory hearings up to trial. As a result, the real issues in the litigation were quickly identified, convenient procedures for written legal submissions and timetables for the orderly calling of witnesses were adopted and the judges became more fully informed of the facts of the cases than usual, giving them the opportunity to take greater control than normal.
Finally, in the late stages of the general settlement of a large part of the Maxwell litigation, Sir John Vinelott was extremely responsive to the needs of practitioners, making himself available at very short notice and with little procedural ceremony, often to solicitors as much as to counsel. The advantages of this flexible and sympathetic procedure in a fast-moving case involving a large number of parties cannot be underestimated.
Johnathan Leslie is a litigation partner at Travers Smith Braithwaite.