Woolf bites back

Amid growing fears that the most radical shake-up in the legal system is heading for disaster, the reforms architect, Lord Woolf, dismisses the legal profession’s pessimism in this exclusive interview with Elizabeth Davidson, and tells lawyers to ‘put their house in order’.

The Woolf reforms are due to begin on 26 April – ushering in a new streamlined civil system which is intended to be quicker, cheaper and more accessible. The new fast-track and multi-track system relies on judicial case management, adherence to strict timetables, a new rulebook and increased use of information technology.

However, many in the legal system believe that a catastrophe is immiment. The computer system underpinning the reforms, currently being installed by US company EDS as part of a $25m private finance initiative, will not be ready by 26 April (The Lawyer 23 June 1998). And a large chunk of the judiciary will not complete their training until October this year. Above all, the profession is worried it will not be able to prepare for the reforms since the final version of the rules, practice directions and pre-action protocols will not be available until 29 January – giving firms little time to absorb the changes, set up training courses and revise their own case management systems.

Lord Woolf, the Master of the Rolls, is both architect and builder of the reforms. His role in their implementation is threefold: as head of the Court of Appeal; as chair of the Rules Committee which is drafting the court rules; and as head of the Civil Justice Council, a civil justice watchdog set up to oversee the system at Lord Woolf’s own recommendation.

He gave an exclusive interview with The Lawyer to address the legal profession’s concerns.

The Lawyer: The profession is concerned that the courts are not adequately prepared for the reforms. Why press ahead with them on 26 April?

Lord Woolf: If you have reforms which are beneficial to the system, the sooner you have the reforms, the sooner you have the benefits which they will provide. If you have a tide moving in your favour, you want to go with the tide, and my judgement is that the tide is running in our favour.

What do you say to those people predicting chaos on 26 April?

There are lawyers, rather like farmers, who will always believe that the end of the world is tomorrow. In fact, lawyers continue to prosper, they continue to increase in numbers and they continue to cope with their problems.

Certainly judges and sensible members of the profession are preparing, but there are some people who don’t prepare, and whether you put it off for 10 years, or start tomorrow, they still won’t be prepared.

Do lawyers grumble too much about the changes?

I think most lawyers are having positive input. There are people who are expressing concerns, but I think those concerns largely indicate they don’t know what the reforms are about.

Many want to prepare by updating their IT and training their staff, but they can’t because the rules are not available.

I want to reassure them, but they must be prepared for the reforms to take place on 26 April. We still have plenty of time and we don’t want to delay it, and they have to take steps to put their house in order.

The EDS computer system will only partially be in place by 26 April. Isn’t IT one of the central planks of the reforms?

IT is important, but not critical. If we can do by hand what IT can do, then we can do it.

The Court Service assures me [we can] and that’s why I assured the Lord Chancellor that the system could deliver without IT. On that basis, on that assurance, everything was pointing to not postponing the launch.

Did you consider postponing the launch date?

We gave very careful consideration to the question. We didn’t originally know that the IT would not be available at the date of implementation we had in mind, and there then had to be a reassessment of the pros and cons. I was firmly of the view it was much better to go on than to wait.

Do you think Lord Irvine is anxious to press ahead with the reforms because it would look bad politically to delay them again?

I don’t think Lord Irvine is the sort of person who would be worried by losing face if he felt the date should be put back, and certainly if I felt the date should be put back I wouldn’t be worried by any loss of face.

I would be concerned that there would be a loss of momentum. One of the most important reforms is a reform in our attitudes. People are starting to change their attitudes and that process is increasing in speed, and what you don’t want to do is stop and start.

It is predicted that there will be delays at the start of implementation because the courts will be bogged down by extra work.

I don’t accept that. I know what’s happening. I know how we are preparing. I know particularly how we are preparing in the Court of Appeal.

We will have a number of appeals from people wondering precisely what to do and the appeals are going to have to clarify the position. We are planning already how to deal with these extra cases.

One way is to deal more quickly with cases we already have waiting, to make our caseload smaller in time for the 26th. We are arranging to have extra judges in the Court of Appeal.

Are you confident the court rules, practice directions and the protocols will be completed in time?

The final draft of the rules, apart from the specialist rules, are finished. For the time being we have incorporated some of the old rules into the new rules – I think we are talking about 10 per cent.

We hope the whole process will be completed by the time the new Access to Justice Bill comes into force in October.

Staff morale in the courts is running low. Does this worry you?

That is something I am aware of. I appreciate there has been worry, but that’s nothing to do with my reforms, that is to do with the fact that, because of financial constraints, [the courts] have been under considerable pressure. Staff get worried because they feel they can’t deliver to the quality they would like. The Court Service has now been provided with extra finance, a very substantial sum [#1.5m], to appoint additional staff and additional part-time district judges. In addition to this, the district bench will sit for an extra 1,300 days.

Will that be enough?

There is going to be a redeployment of judges, so that work previously done by High Court judges will be done by circuit judges, and work previously done by circuit judges will be done by district judges. There’s a need for extra judges at that level.

The reforms are intended to enable courts to deal with litigation much more efficiently and the result is that the same number of judges will be able to work more effectively.

Do you support the idea of judges sitting in the evening and on Saturday mornings, as proposed by Lord Chancellor’s Department?

No. Judges sometimes have to sit on Saturday mornings and Friday evenings, but I don’t think it is possible to take existing judges and make them sit longer hours, because there is a limit to how much you can deduce without it adversely affecting the quality.

A lot more of the work that is done in the court room will be done in the judge’s room, partly through technology and partly through reading things more closely.

Will enough judges be trained in time for the reforms to work efficiently?

All full-time judges who will be involved in the reforms will be trained beforehand. The judges who will be trained in a second wave will be the part-time judges.

Don’t part-time judges play an important role in the reforms?

What part-time judges do as a whole is try cases, whereas the most important reforms affect what happens before you get to the court room and that will be dealt with by full-time judges. The urgency for training part time judges is not so great.

Do you agree with the Vice-Chancellor Sir Richard Scott that lawyers should receive compensation if judges are not available on the prescribed day?

Two situations have been considered. Where the system gets it wrong then compensation must be paid. If you yourself can’t keep to the timetable, then you must compensate those you have asked to keep to the timetable.

On the other hand, if the situation is beyond everyone’s control and there has been no fault, that may not be a situation for compensation.

Do you anticipate satellite litigation over this?

I do not approve of satellite litigation. I anticipate the amount of compensation the Court Service will have to pay will be small because it will make sure it is not liable.

Will the Court of Appeal take a dim view of lawyers bringing satellite litigation?

I would encourage lawyers not to do so.

Overall, are the reforms being implemented in the way that you envisaged?

It looks as though we are going to be in a position on 26 April to start with a new system which will be adequately resourced and will be successful.
Lord Woolf
Head of the Court of Appeal, and head of the Civil Justice Council