Has access to justice been impaired by mediation coercion? asks Katy Dowell
The introduction of the Woolf reforms in April 1999 overhauled the Civil Procedure Rules (CPR) and brought about a radical change to the litigation system.
A decade on and the profession is divided over whether the reforms have had the intended effect of improving access to the courts through speeding up cases and reducing costs.
The implementation of the reforms did much to improve lawyers’ experience of the litigation system. Judicial control of case management conferences has helped stop cases spiralling out of control, says Winston & Strawn partner Jamie Harrison.
“Under the old system cases just ran and ran,” he says. “It took ages for a claim to get to court. It would be adjourned on spurious grounds. There was no case management.”
The reforms gave the judiciary increased powers to take control of cases. Mayer Brown head of litigation David Allen says this improved gradually. “Judges are doing better now than before,” he states. “It’s right that judges should be involved in case management – some might be overzealous, but generally it’s a good thing.”
Research by Herbert Smith, however, suggests that this aspect has not been as successful as Woolf envisaged. This is not because judges are reluctant to take control of cases, but because the perception is that the judiciary is underresourced.
Herbert Smith partner Anna Pertoldi says: “There’s got to be informed case management. The last thing you want is an ill-prepared judge.”
However, the tightening of case management conferences had the consequence of front-loading costs and, many argue, made London the most expensive place in the world to bring a case. The direct impact impeded access to justice.
Anthony Hughes, president of the Forum of Insurance Lawyers, suggests small and medium-sized enterprises (SMEs) have suffered most as a result of frontloading costs.
“There are some good bits,” Hughes concedes, but adds: “It was a hugely missed opportunity. The introduction of conditional fee arrangements has made the stakes much higher and, because of costs, the number of cases reaching court has gone down.”
Figures show that the number of civil actions launched in the High Court has fallen massively as a result of the reforms.
Lovells global head of litigation Patrick Sherrington states: “In the seven or eight years after Woolf the number of writs being issued went down. That’s not surprising, because you’re not going to issue proceedings if you have to do all the work up front.”
In 1990 and 1991 more than 350,000 cases were launched in the Queen’s Bench Division. By 2002 this had fallen to below 20,000 – and this downward trend has continued.
Some litigators would argue that these statistics alone show that access to justice does not exist in the English and Welsh courts. However, one of the successes of the Woolf reforms was to introduce a stronger impetus for arbitration and settlement.
Harrison says: “Access to justice is about more than going to court. My experience is that, having worked in a US court, where there’s a lack of costs jurisdiction, there’s a tendency [by lawyers] to run any claim they can, which increases costs. If you’re a defendant it’s astonishing how much can be spent on litigation.”
Mayer Brown litigation head David Allen says the Woolf reforms brought about a ”fundamental cultural shift in the approach to litigation”. In particular, he argues that both claimant and defendant “feel a pressure to mediate, and it’s good that they feel that pressure”.
Allen continues: “Some would say that there are cases which need to go to trial, and these are usually very good cases. Our courts are not cluttered with unmeritorious cases.”
Sherrington agrees. “The promotion of alternative dispute resolution has been good,” he says.
Writing in the national press recently, Henderson Chambers’ Laurence West QC dismissed claims that judicial involvement in cases has helped improve access to justice and stated flatly that the frontloading of costs had eroded access to the courts.
“I would strongly disagree with that,” responds Allen. “For big-value commercial cases we have a functioning system and access to the courts and you don’t get the significant delay we had before.”
Sherrington says that in an ideal world the solution would be to offer a range of funding options, including contingency fees. But he adds: “That could mean there are all sorts of problems. From a consumer perspective it would be a good option, but whether that would be good for UK plc is another matter.”
It is more important, he says, for London to promote itself as a leading litigation centre. “Why should we say it’s too expensive?” he asks. “It’s shooting ourselves in the foot. The English courts are a good place to have cases.”
A decade on from the Woolf reforms, London continues to enjoy a place at the top of the international legal hierarchy.
“People come to London because of the calibre of the judiciary, full disclosure, a high-quality process,” insists Pertoldi.
“It’s going to be expensive to run complex cases, but that’s life,” adds Allen.
Although it may be fashionable to say that Woolf did much to undermine access to justice in England and Wales, in reality senior litigators believe the reforms were a necessity of their time. The natural progression now is to review those reforms, which is happening in the guise of Lord Justice Jackson’s review of litigation costs.
Why the reforms were needed
In 994, the then Lord Chancellor Lord Mackay invited Lord Woolf, the then Master of the Rolls, to review the rules for civil procedure. The
aim was to produce one rulebook to replace the existing two that governed the High Court and county courts.
In response Woolf persuaded Mackay that a wider-ranging review was needed. His aims were to: improve access to justice and reduce litigation costs; reduce complexity of the rules and modernise terminology; and remove unnecessary distinctions of practice and procedure.