Lord Woolf's inquiry is nearing completion. His interim report, Access to Justice, was published last June and the final report will be submitted to the Lord Chancellor this summer. Christopher Style, a litigation partner at Linklaters & Paines, discusses with Lord Woolf a number of issues of concern to litigators.
You are proposing a pretty radical shake-up of what was, until you came along, a rather conservative profession. How do you think your proposals have been received?
In general, the response has been extremely supportive. Obviously the acclaim has not been universal. However, the majority of practitioners and consumer groups accept that there is a need for fundamental change in the civil justice system and regard my recommendations as being on the right lines. The Lord Chancellor has been extremely supportive.
You want to see “a fundamental shift in the responsibility for the management of civil litigation from litigants and their legal advisers to the courts”. Your proposals depend on judges delivering a quality case flow management system and becoming far more interventionist. Aren't you asking a lot of them?
Not all the members of the judiciary wish to perform the managerial role I recommend. However, a great many are interested in managing cases. Many of them do so already as existing procedures permit. An advantage of having a judiciary drawn from the ranks of the practising profession is that most are experienced at managing cases before they became judges and thus have the experience and insight which are a prerequisite for the management skills I believe are necessary.
If my recommendations are implemented, specialist cases will come before specialist judges. Part of the problem now is that too often judges have to deal with cases with which they are not familiar. But training and support will help judges manage the cases in the necessary manner.
A number of your ideas, such as a large investment in new technology, will cost money. There will have to be more judges – will they be split into teams, with team managers and procedural judges? How has the Government responded? Will the Chancellor of the Exchequer make sufficient funds available?
It is important to avoid exaggerating the additional resources required to implement my recommendations. Some of the most important recommendations, such as having a head of civil justice and a civil justice council, have virtually no resource implications.
If the judiciary is redeployed in the way I believe is necessary, it will be able to operate more efficiently.
The curse of the system at present is the case which settles at the last minute. This should happen less often if cases are properly managed, and hearing times will be reduced.
New technology will cost money but it will provide dramatic savings and court staff will be able to be redeployed on more constructive activities than shuffling paper. There will be a need for additional resources, but my understanding is that the Lord Chancellor regards what I am proposing of sufficient importance to make these resources available.
You have been quoted as predicting that in your 'brave new world', litigation will be a high-volume low-margin business. Dr Adrian Zuckerman's paper, Devices for controlling the cost of litigation through costs taxation, sets out to reassure litigation practitioners. It says: “Only a reduction in the cost of litigation can lead to improved access to justice. Limitations on fees for legal services are not inimical to professional profitability. True, the profitability of any given procedural step, be it witness statements or discovery, will now be governed by conformity with the budgetary constraints. But a regime of constraint could well lead to the evolution of cost-effective practices, as they have done in other areas of the economy. Furthermore, a regime of predictability will encourage litigation by those who are put off by the uncertainty of costs at present. It will also encourage the development of a litigation expenses insurance industry which will ensure that lawyers are not without work.” If we support your proposals, are we not turkeys voting for Christmas?
No, you are not. I firmly believe that what Dr Zuckerman has set out in the quotation from his paper is correct. The evidence I have heard makes it clear that litigants are being deterred by the size of the costs, the uncertainty and the delay.
If my reforms work, it will no longer be folly to become involved in litigation. It will no longer be necessary to settle for the wrong reasons. There will be a more level playing field. Above all, the costs will be controlled and much more predictable. We must not forget that litigation is in competition with other methods of dispute resolution and, in international litigation, with what other systems have to offer. We must make litigation a better buy.
Dr Zuckerman also notes: “The success of judicial case management in cutting down costs will crucially depend on the co-operation of the profession.” One of your problems is that the lawyer is a hired gun, trained to fight his client's corner. You expect the lawyer to become less adversarial and to co-operate with the court in securing a fair, expeditious and economical disposal of litigation; but very often that will run counter to the client's wishes. Aren't the courts going to find themselves continually pitched against the professional instincts of practitioners?
If lawyers are really interested in the clients, then they themselves should co-operate so that litigation is conducted more sensibly and advise their clients to do so as well. The system will no longer be able to be exploited by the powerful client to the disadvantage of the weaker client. It has to have sufficient incentives to achieve a more rational approach, the ethos will then change and both clients and lawyers will benefit.
When do you expect your proposals to be implemented and what transitional problems do you foresee?
The process of change is already taking place and many judges and courts are requiring cases to progress in a much more orderly manner. But the process of change will not be completed over night. A new Rules Committee will be needed to implement the rules I am drafting. There will also be the need for legislation which should not be controversial.
If, as I hope, my final report and the rules are published before the beginning of the long vacation, the legislation could be passed by the end of the year. The rules could be in force next spring. By that time many of the structural changes I envisage should be in place. The process of change should then be able to accelerate. However, the process will be a continuing one. My estimate is that change on the scale I envisage will take at least five years. But long before the expiry of that period, the system should be radically different from the way it is now. Litigants are already benefiting from my earlier recommendations and I believe that they will increasingly do so.