Lord Woolf is frank about the problems facing the civil justice system – they are problems which a competent solicitor may help his clients to avoid but which nevertheless entrap far too many users of the English courts.
The proposals for multi-track cases (over £10,000) might seem to differ little from the way the Commercial Court runs its cases at present (apart from the time to trial). The report clearly draws upon the Commercial Court's experience. If Woolf's hopes are realised, the differences will lie in the recommended procedural reforms, notably in relation to discovery and witnesses, but most of all in the court's willingness to isolate issues and to take the initiative in resolving them as the case progresses, rather than waiting until trial. The key term is 'case management'.
This is one of the thorniest problems for any reformer. There is little pressure to move away from the basic principle of common law discovery – that you must disclose documents which harm your case as well as those which help it. But how to do that without requiring each party to disclose all relevant documents it holds, the rule which leads to the massive and massively costly discovery exercises which plague large-scale litigation?
Lord Woolf's solution is one of the more problematic parts of his report, although there is no easy solution. He divides documents into four categories:
1. documents which a party relies upon;
2. documents which are materially adverse to a party's case;
3. relevant but neutral documents – ie part of the story;
4. documents which might put the other party on a train of enquiry which may advance its case.
In fast-track actions, standard discovery will normally be ordered, ie disclosure only of 1 and 2. In multi-track actions it will be up to the judge whether he orders discovery of 3 as well or even in very rare cases 4.
Although litigators generally support the aims of the report in this area, they hope these ideas can be made more precise in the final version.
Lord Woolf recognises that witness statements, intended to cut costs, have back-fired seriously. Witness statements tend to be hugely long and detailed for fear of omitting anything and weeks are spent massaging them for fear of giving anything away. Then cross-examination takes far longer because the opposing counsel has weeks in which to prepare it.
For fast-track cases, the report suggests that brief summaries of each witness' evidence should be served in advance, to be followed by oral examination at trial.
For multi-track cases, statements will be required but can be supplemented orally and the costs regime will penalise over-elaborate drafting. Cross-examination will be allowed but only by the judge's leave.
Again, these are difficult issues which are not yet convincingly developed. The 'industry' of perfecting witness statements seems likely to continue in larger cases, especially if it is intended that a party will be unable to cross-examine a witness on any details set out in a statement.
Lord Woolf is proposing to publish a second report next year, dealing with specialist and appellate jurisdictions and classes of litigation which cause particular problems. A third and final report will accompany a single set of draft rules of procedure for both High Court and county court litigation.
There are some difficult areas of the proposals where litigators shall follow the progress of inquiry with interest. But at present that inquiry seems the most positive development in English civil litigation for a long time.