14 June 2004
It is five years since the most radical changes for more than a century were imposed upon the civil justice system. Lord Woolf’s reforms, which brought the new Civil Procedure Rules (CPR) regime into effect on 26 April 1999, were brought in under ‘Access to Justice’. The main impetus for the reforms were the delay, cost and uncertainty that had become the hallmark of civil litigation.
In his interim report produced in 1995, Lord Woolf was emphatic about the importance of civil justice. One way of attempting to evaluate the impact of the reforms is to consider the volume of cases being commenced in the High Court, focusing on the Queen’s Bench Division (QBD) for present purposes.
The figures provided by the Lord Chancellor’s Department in the Judicial Statistics Annual Review, for proceedings started in the QBD for the period 1998 to 2002, reveal some stark developments. Using approximate figures: 1998 had 120,000; 1999, 70,000; 2000, 30,000; 2001, 22,000; and 2002 had 17,000.
On any view, there appears to have been a 500 per cent decrease in the number of claims being commenced in the QBD. Why might this be? It is possible to suggest a few explanations: parties have probably been frightened off from commencing proceedings because of all the publicity surrounding the impetus for the reforms; there have been more parties resorting to pre-action negotiation leading to settlement; there has been a sharp decline in the availability of public funding for civil litigation; and there has been an increase in the development of alternative dispute resolution (ADR).
Whatever the explanation for the sharp decline in QBD litigation may be, it poses some serious questions. Are some violations of rights going unchecked because of fear of litigation or lack of resources? How does this impact on the constitutional right of access to court? What is the long term impact on the rule of law and the development of the common law?
In the interim report, Lord Woolf considered ADR in some detail and concluded that it should not be “compulsory either as an alternative or as a preliminary to litigation”. This was because he was then of the view that it would not be “right in principle to erode the citizen’s existing entitlement to seek a remedy from the civil courts, in relation either to private rights or to the breach by a public body of its duties to the public as a whole”. Instead, the court’s role was identified in CPR 1.4(2)(e) as including encouragement and facilitation of the use of ADR.
Most of the case law that has developed in the context of ADR has been based on the overriding objective enshrined in CPR 1.1.
However, in what might be the high watermark of judicial activism in this area, a decision of Mr Justice Blackburne on 8 December 2003 in the case of Shirayama Shokusan v Danovo, held that the court could order parties to engage in mediation, pursuant to the overriding objective.
Some court users might already have experienced forceful persuasion by a judge that has resulted in the parties engaging in mediation ‘by consent’. Nevertheless, some may take the view that this decision might sit slightly uncomfortably with the observation of Lord Woolf in his interim report that ADR should not be compulsory.
In the post Human Rights Act 1998 landscape, it might well be argued that court-ordered mediation could in some cases violate Article 6 of the European Convention on Human Rights (the right to a fair trial process). These considerations certainly appear to have been prominent in a court decision on 26 February 2004, where a stay of court proceedings and an order for a non-party to attend mediation were refused.
It would appear that the courts have as yet to firmly resolve the point of balance between ‘encouraging and facilitating’ and ordering mediation.
Five years on, the legal landscape appears to have altered radically. The impact this may have on access to justice, the rule of law and development of the law merits closer study as a matter of urgency.