The Woolf reforms in the form of the civil procedure rules (CPR) have entered their tenth year since the then Lord Chancellor Baron Irvine of Lairg described them as “the most fundamental change to the civil justice system in England and Wales for over 100 years”. He also predicted that “with such radical change it will of course be many months yet before I can be certain that the objectives of the reforms will be achieved on a permanent basis”.
A decade on and we are better able to judge whether the objectives espoused at the time have been achieved. Has the recent work of the Commercial Court in proposing changes for ‘long trials’ started the hare running for a 10-year review of the radical change?It was and remains of significance that at the same time as the Woolf reforms were in the birth canal the new Labour Government was tackling the question of the burgeoning legal aid budget. The Government sought to reduce legal aid expenditure by introducing ‘no win, no fee’ for personal injury claims. More than this, it sought to police the changed relationship between solicitor and client by shifting the burden of paying the additional costs to the defendant. It was, however, not predicted that the policing process would be affected by defendants using a a zero-tolerance approach.
Government interest in civil justice did at least have the benefit of ensuring a legislative dynamic for the wider reforms proposed by Lord Woolf. On the other hand, it tied those reforms to the policy of reducing public expenditure on civil justice and all that flowed from it. These were not nuptials made in heaven. While one was intended to reduce cost and satellite litigation, the other produced both in spades. This was unfortunate, because the subsequent concentration on cost issues detracted from the benefits that the reforms produced in the civil justice process. These benefits have been seen more plainly in other common law jurisdictions that have adopted similar reforms using the Woolf reforms as their model.
Legislative changes have at least sought to reduce satellite litigation, but there remain concerns that the reforms have exacerbated the rising cost of litigation and that procedure and management might be altered to address a growing problem.
It is ironic that one impetus for change is coming from the Commercial Court. Certainly, pre-Woolf the Commercial Court was at the forefront of one of the Woolf principles – court management of the claim process – with judges taking a hands-on approach to ensuring an effective and efficient process to resolve disputes.
Even as the Woolf reforms were being proffered there was talk of the independently minded Commercial Court making a unilateral declaration of independence (UDI). In the event, since many ideas prevalent in the Commercial Court found their way into the CPR, the idea was dropped.
Once again, however, the Commercial Court has stepped up to the plate. In its report and recommendations of the Commercial Court Long Trials Working Party it takes on some of the pillars of the Woolf system: pre-action protocols; pleadings; witness statements; experts’ reports; preparation for trial; judicial management; and costs.
In doing so the report supports and seeks to strengthen some elements of the CPR, but in others does not shy away from challenging Woolf concepts (and indeed those that the Commercial Court adopted before the CPR). Letters before action should be concise, giving the essentials of the case rather than form an early pleading. Even there it is suggested that the pleading should be limited rather than be the home of claim, detail and evidence. Witness statements might leave some room for evidence in chief at trial. At the heart of the proposals, however, is the need for the parties and the court to get to the real issues of the dispute as early as possible and to work from those issues.
But is this review of the Woolf reforms of relevance only to ‘long trials’ of the likes of BCCI and Equitable Life? They do have their especial needs, but to what extent are these proposals transferable to other areas of litigation? While lauding the progress made with the Woolf reforms, we will all have our views on what works and what does not. Has the front-loading of litigation made more cases uneconomic? Do we really need the huge burden of e-discovery? Should we give up an adversarial process in the small cases and switch to an inquisitorial system for those claims? Summary assessment achieves its purpose of cutting down interim applications, but does it simply increase costs, and to what extent is it just?We should, of course, not detract from the great work that the CPR committee and the Civil Justice Council do in keeping under review the rules and the process generally; but with the 10-year anniversary upcoming, does the work of the Commercial Court preface again a more fundamental review by practitioners of what does and does not work?
David Greene is president of the London Solicitors Litigation Association