Woolf reforms fall short as litigation remains favourite

Arbitration and ADR prove unpopular; cases speeded up but costs remain high

The Woolf reforms have not been as successful as was hoped, with many lawyers believing that there have been no significant reductions in time spent on cases, according to the latest research.
Litigation remains by far the most popular means of resolving disputes, and pre-action protocols, the centrepiece of Woolf's reforms, have been used by only 61 per cent of respondents to a recent survey.
The survey was based on the opinions of in-house counsel, legal advisers, chairmen and other senior positions in 250 companies, including many in the FTSE 250. It was carried out by the commercial litigation department at South East law firm Stevens & Bolton.
Hopes for increasing the efficiency of litigation have not been fulfilled, with only 11 per cent of those interviewed saying cases have become cheaper; 48 per cent say cases have been speeded up.
Of the respondents, 88 per cent have been in court since the Woolf reforms were introduced in April 1999, while only 53 per cent have used arbitration. Only 7 per cent use arbitration regularly and 43 per cent have never used it. Thirty three per cent do not include arbitration clauses.
Arbitration was attacked by one respondent for being “as difficult and labour intensive as court proceedings”, while another commented that it “just delayed resolving a dispute”. Another said: “In a sophisticated legal system, we prefer the certainty of the court process.” One felt that clients still want their day in court.
Alternative dispute resolution (ADR) is even more unpopular than arbitration, with just 11 per cent preferring it to litigation. Knowledge of specialist forms of ADR is poor, with 86 and 89 per cent saying they are not familiar with executive tribunal and early neutral evaluation procedures respectively. For those readers who are not sure either, executive tribunals are otherwise known as mini-trials and involve presentations from each party to the other; early neutral evaluation involves an assessment of the merits of a case by a neutral expert.
Almost a quarter do not find ADR a satisfactory process. One said: “ADR can speed things up but it doesn't necessarily reduce costs.” Another commented: “Its usefulness depends on the ongoing commercial relationship between parties.”
Stevens & Bolton commercial litigation partner Michael Frisby said: “While ADR isn't a panacea to all ills, it is a useful tool; but the findings of our survey suggest that a lot of businesses still need to be convinced of the benefits of ADR.”
He added that, although by and large the Woolf reforms have speeded up cases, the objective of saving costs has not been achieved.
Seventy four per cent of respondents said the business environment has become more litigious, and 90 per cent have pursued claims since April 1999.