Judgement Day for civil justice reforms is nigh
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19 June 2013
The launch of Lord Woolf's reforms is imminent, but Elizabeth Davidson finds that preparations are still very much in the preliminary stages.
IF you believe the civil justice doom merchants, Armageddon will strike on 1 April 1999 - the date when the long-awaited Woolf reforms are due to be unleashed on the world.
The spirit of the reforms has always been welcomed by the legal profession. But many lawyers believe the Government is rushing ahead with them too quickly.
Even the Lord Chancellor, Lord Irvine, has admitted the timetable is "challenging but achievable".
His critics say he would rather risk chaos, than lose face by delaying the reforms. They predict mass confusion among judges, court staff, lawyers and litigants. Not enough judges, not enough IT and too little information on too much change is their mantra.
Are they right? Everyone agrees that change on the scale envisaged by Lord Woolf is a mammoth task.
The current civil justice system has been built up over centuries. It may be illogical, but for the people who actually work in it, it is the only thing they know. They are deeply suspicious of any changes.
The Lord Chancellor's Department's (LCD) research into a mediation pilot at the Central London County Court, published last month, was a reminder of the Herculean task ahead.
It found solicitors to be generally unenthusiastic, frequently apprehensive and, occasionally, positively hostile to mediation. Yet the whole thrust of Woolf's reforms is that litigation should become less combative.
Take the litigators' inbred love of conflict, and add claims, most notably by Professor Michael Zander of the London School of Economics, that judicial case management will not work, and things get complicated.
Then there is The Lawyer's revelation in June that the IT needed to underpin the reforms will not be ready in time.
All these factors will have played a part in persuading the Law Society last month to call for the reforms to be delayed until "at least" 2000.
During a House of Lords debate on 29 July, ex-Tory cabinet minister Lord Hunt of Wirral (now senior partner of Beachcroft Stanleys) warned that the timetable for implementation "looked decidedly optimistic". He said he "did not believe that the reforms will succeed without adequate IT support".
For practitioners, the problem is uncertainty. The final court rules and practice directions for Woolf's new three-track system will not appear until January 1999 - giving firms just three months to train fee earners and adjust their working operations.
Suzanne Burn, secretary of the Law Society's civil litigation committee, says firms will need time to prepare their staff and office procedures for the changeover.
Hodge Jones & Allen senior partner Patrick Allen says his firm is finding it difficult to plan ahead because it still does not know how the new system will work.
Even key factors such as whether Lord Woolf's fixed costs regime will be introduced straight away are yet to be decided by the Government. And if fixed costs are introduced, nobody knows what the rates will be.
Allen predicts: "Things will limp along but it will be chaotic."
One concern is the pre-action protocols which Geoff Hoon, the minister of state at the Lord Chancellor's Department, unveiled in draft form last month.
For many, the Government's handling of the protocols - one for personal injury and one for medical negligence work - symbolises a slapdash approach to the reforms.
The protocols are designed to lay the ground rules for the pre-action negotiations between plaintiffs and the defendants' insurers.
But although a pilot scheme designed to test the protocols has been heavily criticised by the firms taking part, the Government unveiled the draft protocols while the pilots were still running.
A great many question marks also hang over the role IT will play in the reforms.
Richard Susskind, who advised Lord Woolf on the required IT and continues to advise senior members of the judiciary on technology, says: "It was never anticipated that all judges would have technology from the outset." He says separate computer systems are required for fast-tracking and multi-tracking.
The county court systems will be ready by 2000 while part of the system needed for multi-tracking is already in place, with the rest being phased in over five years.
Susskind is confident the reforms "will work" and the system will become "more and more efficient as judges travel the learning curve".
One senior LCD official has told The Lawyer he is actually pleased all the systems will not be going online at the same time. "From my experience of large IT projects, that really could have led to a disaster," he says.
In practical terms, the LCD aims to counter the lack of IT by redeploying about 60 extra staff from the court service to operate the system manually.
And last month Hoon announced that the LCD intended to bolster the judiciary by appointing 28 new judges. Given that much of the case management Lord Woolf thought would be done using IT will now have to be done on paper, the extra manpower will be sorely needed.
It would appear that, come hell or high water, the Woolf reforms will be launched on 1 April 1999. That means a lot of work between now and then for both firms and judges.
It probably will not be the day of judgement which the doom merchants are predicting, but it is also unlikely to be quite the brave new world that Lord Woolf would have been hoping for when he set out on his access to justice inquiry.