Litigators are content after the reform

The biggest change under the Woolf reforms has been the way in which cases are handled, writes Liz Tout.

Some people may find it difficult to imagine that litigation lawyers could be expected to reach a general consensus on any subject. What then, should we make of news that a MORI poll commissioned last month found that, a year after the introduction of the Civil Procedure Rules (CPR), 80 per cent of solicitors are "content" with the CPR?

Clearly, this suggests that Lord Woolf's reforms have gone down better with the profession than could perhaps have been expected. Or do MORI's findings result from an anxiety among litigators not to be seen as Luddites?

Although the reforms had been long-heralded, the rules themselves were implemented with almost unseemly haste, the final version not being published until late January 1999 and taking effect from 26 April, giving scant time to absorb the detail. Moreover, amendments have followed on a monthly basis and show no signs of abating. Seen against this background, and given that resistance to change is a very basic human trait, the approval ratings given to the CPR are, perhaps, surprising.

The transition has undoubtedly been eased by some genuinely welcome and useful innovators: Part 36 offers are an undoubted success story; restraints on the scope of disclosure will also be, if sensibly and pragmatically imposed (there is some anecdotal evidence that the new test for standard disclosure is being used by some as a means of holding back damaging material). The same is true of the encouragement of ADR.

However, the single and most fundamental change, in my view, has been the behavioural impact within the profession in terms of how cases are handled and how the lawyers now deal with both their opponents and the court. The days of the tactical application are certainly by no means over but those of constant inter locutory skirmishing – often with no real objection other than to put costs pressure on a more impecunious opponent – most certainly are. In this, active case management and the prospect of summary assessment (and payment of) costs have played their role, but the fact that solicitors know that they must assist the court in achieving the overriding objective plays a less tangible, but nonetheless important, part.

Case management conferences provide one example of how the court's active management role influences and modifies parties' behaviour. In my experience, parties in most cases are now trying to agree sensible directions which the court may feel able to endorse without holding a case conference. There is every incentive for the parties to do so given the tight timetable the court now has to impose.

Pre-action protocols are another welcome innovation, encouraging an early exchange of information concerning the merits of each party's case and hence encouraging speedy settlement without recourse to litigation. However, it is comparatively easy for the process to spin out of control and become either a fishing expedition on the proposed claimant's part or a dummy run of a complex case, simply adding to the costs if – as will often be the case – no pre-action settlement is achieved.

Similarly, summary assessment cannot be regarded as an unqualified success. It has assisted in discouraging unnecessary and unmeritorious applications, but the courts have (not surprisingly) shown themselves to have little feel for the work that they may be required to do with a substantial application. The inconsistency in approach has meant that the outcome of summary assessment can be little better than a lottery. Judicial inconsistency has been a problem in other areas as well. While hardly surprising given the nature of the reforms, it is clearly a matter for some anxiety, making it difficult for practitioners to give advice with real confidence and increasing the likelihood of satellite litigation. One example is the ability to strike out – the CPR were intended to simplify matters but a body of new case law has already evolved in this area.

Taken overall, therefore, the verdict on the first year of the CPR must be positive, with the caveat that there are some areas where further review and refinement is necessary. It would be no real disadvantage if the place of future new amendments is allowed to slacken a little, and time is taken to assess how the rules are bedding down in practice, and where the problems and inconsistencies lie.

There has been real evidence that the rule makers and the judiciary want to understand the solicitor's perspective and use this insight to make the reforms even more effective in the future. If the court can build on the solid base achieved in the first year, there is no real reason why the CPR's approval rating should not rise yet further, although, as every litigator knows, there is no such thing as a 100 per cent winner.

Liz Tout is joint head of litigation at Denton Wilde Sapte.