There has been much comment on the content of Lord Justice Woolf's report Access to Justice. Both professional bodies and lawyers have welcomed proposals, principally aimed at the litigating public, which embrace the speed and fairness of dispute resolution and proportionate costs.
But what will the Woolf report mean in practice? It is in the chambers and offices of the profession that Woolf's brave new world should see its dawn. But the profession also has the power to shut change out or to take account of the changes but in such a way as to rob them of their intended effect. One only has to look at the way the exchange of witness statements proposal in the Civil Justice Review has been ambushed by lawyers and so diluted in practical effect as to be counterproductive for an example.
But Woolf appears determined to be different. His proposals, once implemented, will be policed by the court as part of its new interventionist role. The question is, will they meet resistance and avoidance and if not how must we, the instruments of potential change, adapt?
Woolf's proposals mean loss for the legal profession – loss of control of the direction and pace of litigation, potential loss of quality of dispute resolution and loss of a reactive or speculative approach to litigation.
First, loss of control, perhaps the most significant aspect of Woolf's report. The lessons of the Criminal Justice Review have been learned and Woolf proposes that the court will take over primary responsibility to ensure litigation is conducted at a publicly acceptable pace.
Lawyers will no longer be able to ignore the rules and agree a convenient timetable for progress and will instead enter a rigid, uncompromising march towards trial. Further, proposals relating to court-appointed experts will also mean that control over the outcome of litigation is eroded. Court-appointed experts are likely to involve extra cost and uncertainty rather than achieve less costly and prompt resolutions.
While one applauds steps which reduce the inappropriate use of experts, how will a lawyer be able to advise on conduct of litigation without understanding the strengths and weaknesses of the technical facts in issue, apart from a privately-commissioned expert's report? Perhaps most interestingly, submission of control to the court will demand a change in philosophy to those most obstructive and uncooperative solicitors whose strategy is to take every point, irrespective of its merit, as part of a strategy to wrest control of the litigation and grind down the opposition.
Woolf calls for a sensible and co-operative approach to litigation whereby efficient resolution is the aim of all parties through a court-controlled process. It is difficult to imagine how that will be achieved without the stiffest of sanctions for non-compliance – immediate costs orders are the present suggestion – and how entrenched attitudes towards long-term litigation and the use of spoiling tactics will survive or restrict the pace of change.
Second, loss of quality. Speed of resolution at reduced cost is to be welcomed, but it may lead to ill-prepared cases driven to trial on the fast-track to rough justice, dispensed not by inadequate judges but to unprepared parties. This is not intended to be an indictment on lawyers. However, Woolf's proposals on cost-capping may simply mean that cases on the fast-track (involving sums in dispute of £5,000-10,000) are not able to be prepared to a standard that the courts and the parties to litigation have come to expect.
Third, we must face up to the fact that it will no longer be possible to issue proceedings speculatively or to adopt a sporadic or reactive approach to the defence of litigation.
The fast-track's biggest practical challenge is probably to high-volume defendant orientated practices where it has been quite permissible to sit tight and let sleeping plaintiff's lie over months if not even years.
If Woolf's proposals are adopted, requiring meaningful (and not overly defensive) pleadings, and early identification and disclosure of evidence, the conduct of all litigation will become 'front-loaded' in terms of energy and cost and then pro-active throughout. The present approach of defendants' lawyers, particularly insurance-backed defendants, will simply not survive.
With so much at stake, how should the professions react? Any study of Woolf's report shows he has appealed to the client rather than the lawyer. It is in realising this that his proposals can be justified and grafted onto what will be a more effective service and client-oriented profession.
The loss of control is here and there is nothing that can be done to alter it. What can be done is to advocate the use of sensible commercial advice at an early stage.
Woolf shies away from making alternative dispute resolution (ADR) a compulsory prerequisite to the issue of proceedings, but it is clear that lawyers must become familiar with and proficient in methods of ADR and be prepared to use them early on if appropriate. Lawyers must also promote the market for relevant expert's reports which provide independent and realistic information at reasonable cost.
Closer to home, fears concerning unprepared cases driven to trial on fixed costs may be assuaged by having a better organised team of lawyers incorporating a case lead manager and assisted by intermediate managers and executives (not necessarily qualified) on all cases, not just the largest. This should ensure cost-effective conduct of litigation and would to an extent mirror the proposed management structure for the courts.
Such a change in emphasis will carry substantial implications for in-house lawyers and smaller firms of solicitors in their resourcing and also in the use of information technology – the change to team management of cases can only be assisted by the thoughtful and creative use of IT. One suspects that in-house lawyers are a substantial way ahead of their private practice counterparts in this regard already.
Plaintiffs must ensure they are “thinking trial” before proceedings are commenced if they are to maintain initiative and not fall foul of the court case manager.
Defendants must be prepared to devote their full attention to proceedings, which will undoubtedly challenge the economics of defending litigation and may again serve to force prompt, though potentially rough, settlements, especially of fast-track cases.
Woolf calls for long-term thinking and deployment of resources. The cost of commitment to change may be substantial. However, if motive for the change, training and resourcing that will be required to implement Woolf's proposals were required, one need look no further than the client.
It is the client's interests which Woolf has appealed to and the clients' interests which we are called to serve. Woolf has thrown down the gauntlet for evolution from lawyers, serving practice and procedure, to business advisers seeking the resolution of distracting and debilitating business problems.
The evolution, one feels, will take place. There are some things we will lose, yet much to gain. We should not be slow in recognising the need and benefit of change to facilitate long-term gain.