With his ideas for a legal revolution that borrow much from across the Channel, Lord Woolf may have put UK justice on the block, says Geraldine Gadbin
Lord Woolf must be a fan of Napoleon. Apart from creating the Civil Code, the French dictator implemented the Code de Procedure Civile, now the Nouveau Code, a unique set of rules applicable before all civil courts in France.
Nearly two centuries later, the recently appointed Master of the Rolls is proposing to import a very French concept to the UK and discard the Green and White books. The idea is to make the legal system more accessible to the “under-resourced litigant”, speedier and less costly. The principle is praiseworthy. But many believe that it will not work in the UK.
A couple of weeks before Woolf's report came out, Lord Mackay's long-awaited White Paper on legal aid was published and contained a number of provisions with a French accent. Mackay's ideas are drastic and imply a complete change of the legal aid frame.
There is an awareness that justice in the UK can be slow and costly and that change is necessary. But the changes should not be made at the expense of the quality of the legal services, of those seeking that justice be rendered, and at the expense of the legal profession which has been the scapegoat for the problems experienced by litigants. And from the French point of view, there are signs which suggest these reforms, if implemented, would not improve access to legal services but may divorce English law from its historical roots.
Over the past two decades, law has become a consumer product. References are made to the legal market and the need for value for money. The person seeking justice is a consumer although they retain the name justiciable in France.
But there is a major flaw in the idea of a legal “market”. The market economy only benefits the consumer if a form of competition develops between the various suppliers of similar products and if the consumer is able to afford a value for money product at all levels of cost.
But is this the case at present, in a system where a litigant faced with a technical action can be denied sufficient legal aid to find the lawyer who can best fight the case? Access to justice is denied to a sector of the population which has soared since the 1993 cuts in legal aid eligibility. And it is difficult to assess whether the quality of legal services is the same for all consumers. Quality criteria have been set for legal aid franchises but all practitioners complain that the bureaucracy they impose has nothing in common with the quality of advice, assistance or representation given.
It has long been believed that clients on legal aid are not catered for as well as private ones. This is wrong. The involvement of solicitors in the franchise scheme and the pro bono work they carry out, whether in-house or in the voluntary sector, shows the word “quality” applies irrespective of it being referred to. However, it is true that legal services are officially only available to those who can afford to pay for them or fall within the scope of legal aid, subject to the work carried out by the voluntary sector.
The French form of cash-limited budget works because it is compatible with the country's legal system. A local bureau d'aide juridictionnelle (BAJ), the equivalent of the local legal aid board in the UK, is attached to the local Tribunal de Grande Instance, the court before which all general matters are heard. Each year, the government grants a lump sum to the BAJ fund, run by the local Bar but managed by an accountant.
The amount given, which is used to pay avocats nominated to carry out legal aid work, is calculated according to the number of legal aid matters handled the year before. Avocats bill private clients on a fixed-fee basis, the scale of which depends on experience, and are paid for legal aid work according to a fees system of standard units, the number of units depending on the case matter. It is fairly easy for the government to assess the need for money in an area which is tiny compared to that covered by a UK local legal aid board and when the legal profession does not charge by the hour.
But the implementation of a French-style cash-limited system in England and Wales will cause problems. Rather than aiming at improving the quality of the services provided, it seems the Government's intention, albeit indirectly, is to make further cuts in an already hard hit legal aid budget. And the profession, which has already invested large sums into franchised work, will soon get tired of trying to keep up with the changes imposed upon it. The boycott of the franchise scheme by Birmingham firms proves there is already a problem.
Irrespective of the legal aid issue, will access to justice be improved by the proposed reform of civil procedure? A single set of procedural rules is a good idea, as is the proposed multi-track litigation system. In France, one set of rules governs the first-stop civil courts – the Tribunaux d'Instance and the Tribunaux de Grande Instance. The latter, the “tribunal de droit commun” (tribunal of common rights), tackles any civil matter other than those specifically allocated to the Tribunaux
d'Instance, such as cases where the sum involved falls below a cut-off level. And within each tribunal, cases are allocated to a number of niche chambres. The French system, therefore, is similar to that of the UK, with the county court and the High Court, save that Napoleon's Nouveau Code de Procedure Civile regulates all civil courts in France. This makes the avocats' life easier and Woolf believes a similar system would stop UK lawyers having to lug the Green and White books around the courts.
Woolf's championing of alternative means of dispute resolution, such as mediation or arbitration, already exists in France to a limited extent in
industrial tribunal disputes and divorce matters. But it is largely ineffective. The parties in dispute appear before a mediator judge who asks them whether they believe there is an amicable way to solve the problem. But the parties rarely believe there is – when the matter has reached that stage, all attempts to sort things out in a fairly friendly way have failed. However, arbitration is a common remedy to disputes over big-league commercial deals, where both parties want to avoid the publicity of a public trial. In those cases, the parties are on an equal footing and are fully au fait with the rules of arbitration.
Woolf hopes that by resorting to arbitration or mediation the parties will save the time and money usually incurred in instructing solicitors and going to court. His hope is misplaced.
The most powerful and wealthy party will not hesitate to spend whatever time or money is needed to go through mediation or arbitration, even if it means, as for a small claim, being penalised in costs. After all, the costs of instructing a
solicitor are not recoverable from the other side.
Should a matter be taken to court, Woolf and his team envisage a strict timetable to ensure the action will be brought to a swift end. Fine in principle, but the practice may prove to be a difficulty it will not be easy to overcome. Case management has been operational in France for a long time. But the country's judges are familiar with the concept as soon as they enter the ecole nationale de la magistrature. Once proceedings have been issued, the matter is regularly called before a mise en etat, a sort of directions hearing where the parties are not present, to allow the court to check what stage has been reached and assess when the matter will be ready for trial. There is only one way in France to start proceedings, by an assignation. All further pleadings are called conclusions.
Woolf seeks to limit the number of pleadings exchanged at court to two, with leave having to be requested to serve a
reply. In France, the number of pleadings is unlimited provided the party which intends to serve an extra pleading can justify there is no prevaricating attitude at the mise en etat. Therefore, it is not uncommon to see building disputes lasting 15 years after the cause of action.
The major problem with Woolf's proposal is that, depending on the limitation period, the plaintiff will be tempted to spend either three or six years preparing a detailed statement of case, leaving the defendant only a few weeks before trial to prepare their case. This will be contrary to the Master of the Rolls' aim to set all parties on the same footing.
Woolf proposes a single expert be appointed on behalf of all parties to save time. This system occurs in France and it has hardly ever proved to be a problem. When a major difficulty occurs, it is possible for the French litigant to apply for the appointment of another independent expert, a contre expertise. Woolf also proposed that there be no oral evidence from experts as occurs in France. It will probably not be long before the Master of the Rolls suggests not to hear any witnesses either and that would put the current English legal system upside down.
On the other side of the Channel, potential witnesses in civil matters depose by statements made on oath. This saves time, but it presents a big risk: there is no provision which says the witness statement must disclose all facts and therefore it is possible to willingly omit points which could be held against the party on whose behalf the witness deposes, and which could come out in cross-examination. This sort of justice seems less fair.
It appears that English civil justice is heading for revolution. The French have more experience in that area and before taking any practical steps towards their reforms, Mackay and Woolf should be advised there will be no turning back.
Geraldine Gadbin is a research fellow at Grenoble University, a qualified avocat and a solicitor.