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In the mid nineteen eighties the English Civil Justice System was deemed to be in an unsatisfactory state, so in 186 the Civil Justice Review, headed by Maurice Hodgkinson was set up to investigate the flaws and make recommendations on how to improve it. The report issued in 188 did not receive popular support from the legal profession due to vested interests; Hodgkinson was not a lawyer and the recommendations he made, if implemented, were most definitely to result in a reduction of money received by lawyers, barristers and judges. Consequently only a few changes were made by the Legal Services Act 10. Thus in 14 the Conservative government appointed Lord Woolf to head a review into the whole system, 16 saw the publication of the Access To Justice Report AKA The Woolf Report.
In his report Lord Woolf identified fundamental problems with the system and suggested ways in which they could be overcome, he declared eight principal aims and concluded that none of them were being achieved. According to the report, the Civil Justice System should aim to deliver fairness and justice at a reasonable speed and cost, be understandable to the people using it, provide certainty, be responsive to the needs of the people and be adequately resourced and organized. However, there are some inherent contradictions in these aims - for example a system that is quick and cheap does not necessarily provide justice. The recommendations were implemented in stages, the first one being the Civil Procedures Act 17, and since April 1 the majority of the changes have been in place. November 18 - April 000 was a changeover period when there was £1 million put into the system for retraining programmes for staff. As a result of the Woolf Report the Civil Justice System has been radically reformed, however, the effectiveness of these alterations is open to question.
The main focus of the changes is that going to court should be attempted to be avoided in as many cases as possible, instead a pre-trial settlement (Alternative Dispute Resolution) monitored by the courts will be encouraged. It entails both parties negotiating an agreement whilst an independent arbitrator oversees the proceedings to ensure that justice is being done. With regard to the issue of justice ADR is an advantage as it combats the problem of unequal bargaining positions, the arbitrator is neutral thus no bias will be shown, both parties agree on who the arbitrator will be and agree to stick to the decision made. The claimant ensures that they get at least something - although it may be less, it cuts out the risk of losing the case and receiving nothing. The defendant prevents high profile publicity that could easily ruin their reputation (especially prominent in cases involving large companies) and also it means that they avoid the risk of losing the case and having to pay an even larger sum. ADR saves both parties and the courts a lot of time and expense. Although ADR has for the most part plenty of advantages it does also have some disadvantages, the most significant probably being the fact that there are no policies of precedent. No guidelines are provided for future cases due to each case s judgment being based on its intrinsic rights and wrongs. Decisions may prove difficult to enforce, as the courts do not make them.
Case Management is probably the most significant reform as it is crucial to fulfilling many of the intended aims. It means that nowadays the court plays an active role in how and when things take place. Currently the nature of English law is that of an adversarial system, the introduction of case management has meant the slight movement towards an inquisitorial system. The adversarial system creates a battle between the two sides i.e. the adversaries, and naturally a battle resorts to the use of tactics. A common tactic used by lawyers is delay, this in turn costs money, in order to avoid this the courts can set strict deadlines which if not met can lead to penalties in the form of a reduction of compensation received. Now the only way a case can be stopped or slowed down is if either side offers to settle.
Cases are classified primarily by financial value of the claim, however complexity and importance may also be taken into account, the classification of the case will then determine which type of track it is allocated to. Three different tracks have now been established to deal with different levels of cases; Small Claims, Fast Track and Multi Track. Small claims courts resolve disputes with claims involving less than £000 and are typically cases of consumers taking companies to court over faulty goods. The process is quick and cheap, the average time of a hearing is less than half an hour and the procedures are simple enough to be understood by Lay people. The Judge is called a Registrar and is usually a junior civil law judge. By having Small Claims courts it raises the public s confidence in the legal system by proving that justice is within reach of everyone - not just people with money and power. It does not follow the same procedures as the higher courts so it is not compulsory to have a lawyer, people are allowed to represent themselves or have what is commonly known as a McKenzie Friend (another Lay person) to represent them, this contributes to fact that it is much cheaper than higher courts. The disadvantage for the claimant of having a McKenzie friend to represent them is they will probably be facing a large company with trained and experienced lawyers specifically employed to deal with law suits.
Fast Track cases are heard in the County Court and deal with straightforward actions with a claim value between £5000 and £15000. The courts will set out the course of events according to a strict timetable in order to bring case to trial within a short but reasonable timescale. Ideally the cases themselves will only last for one day thus no oral evidence is heard from the witnesses in person, instead evidence will be read from a pre-prepared statement. Each side is only permitted to use one expert witness. Lord Woolf did also propose the idea of fixed rates for lawyers, he recommended £500 as the upper limit for fast track cases, needless to say this has received much criticism and little support from the legal profession. Although limits have been introduced for the trial itself, fixed pre-trial costs have yet to be implemented and lawyers are still charging open-ended hourly payments. The third and final case allocation track is Multi Track, dealing with cases exceeding £15000 claims and heard generally in the High Court. If the case is complex then a staged approach will be taken, some issues will be sorted out in a pre-trial review. The Judge will not automatically set a trial date, which leave s flexibility, instead an individually tailored timetable will be organised to fit the needs of the case.
Nowadays, rather than just simply reacting to the cases put forward by lawyers, the courts take a much more pro-active approach in order to accomplish the key goal of achieving justice. In order to do this the court must; identify issues early, decide which issues need further investigation, encourage ADR and co-operation between the two parties, assist in pre-trial settlements if possible, decide upon the order of issues to be addressed, examine the cost benefit of the decisions, deal with the case without parties attendance, make appropriate use of technology and ensure speed and efficiency when possible.
Case management combats the problems that arise due to the unregulated market for services. In other words a party who opts for a lawsuit in ordinary courts will probably prevail over their opponent who would prefer a lower cost alternative as they can exploit this fact - especially if they are richer. However, it has been criticised by some academics, such as Professor Zander, who claims it is only appropriate in a minority of cases. He also feels that the courts are not in a position to set suitable timetables as they do not possess enough knowledge of the workings of a solicitors office and Judges do not have the time, skills or inclination to take on the job of case management in the first place.
As the courts experience problems enforcing payment of compensation, new sanction rules have been introduced and if the parties don t follow these rules they can be punished. The court can do one of either two things; increase/decrease the amount of compensation or Strike Out the whole or just part of the case, usually for failure to keep to agreed timetables. Previous to the 1 reforms the onus was on the party being wronged to apply for a sanction on the other party. Now the emphasis has changed as sanctions have become automatic and the onus is on the party who has committed the wrongdoing to apply for it to be lifted. Once again one of Woolf s reforms initially appears to be a good idea but under closer examination we see that perhaps it is not actually going to be that effective. Professor Zander argues prearranged timetables for fast track cases are virtually impossible for large firms to adhere to; therefore they will have to be applied on an immeasurable scale ensuing many appeals. Zander draws attention to the point that there is evidence to show that lawyers are poor at keeping to timetables and just because of sanctions this is not necessarily going to change, so it is unfair that litigants should be punished for their lawyer s failings.
Another key change is the procedure in the High and County Courts is now the same, they used to have completely different sets of rules; the High Court had them written in the White Book and the County Court in the Green Book . A writ was needed to start a case in the High Court and a summons had to be issued to start a case in the County Court, now it is just a Claim Form document in both courts. The rules are written in much simpler English, whereas before it was legal jargon; for example what used to be called the Plaintiff is now known as the Defendant . This has made things much simpler and achieves the aim of making things understandable to the people using the system. The use of e-mails and fax has now been permitted, this is a big advantage over the old system which allowed only letters for correspondence, it saves a lot of time and as a result, money - therefore fulfilling the aim of delivering a service with reasonable speed.
Pre 1 the disclosure, or discovery as it was then known, of documents entailed each party having a duty to provide the other with a list of documents used in their case. Woolf proposed that disclosure should only involve documents that would hinder a party s case as the previous method was time consuming and expensive, however, the new rules are not actually that different. Documents must be disclosed which adversely affected or supported a party s case (Elliot and Quinn), but the documents no longer have to be of material extent .
In order for the courts to aim to become self-sufficient, court fees have been significantly increasing. There is now a pay-as-you-go system, which was introduced in 1 by the Labour government, this entails paying at each stage of action. For example the Small Claims commencement fee is £0 and the High Court commencement fee is £00. Nevertheless, there is still a legal aid system where people on financial support can get aid to help them take someone to court. The introduction of court fees has been condemned, as it is believed people with low incomes will be discouraged from taking reasonable action to ensure the enforcement of justice. It is also arguable that justice is an essential part of everyday needs, as are health and education, which don t have to be directly paid for by the user.
In an attempt to resolve things more quickly a set of guidelines has been established called Pre-action Protocols, they are to be enforced before going to court and encourage people to settle before the case goes to trial. Currently only three sets of protocols have been established; personal injury, medical and negligence legislation and housing cases - more are hoped to be developed to build on the three existing ones. A typical example of a Pre-action Protocol would be both parties agreeing on a timetable whereby certain deadlines are set in order to achieve the intended aims, e.g. agree on one expert witness - saves time and money.
Although on the whole the recommendations and reforms have been well received and greatly supported, there has been further criticism as to possible changes that have remained unmentioned in the Woolf Report. The majority of the reforms are based around the fact of trying to overcome delay, which is believed to be principally caused by having an adversarial system, however, there is no real evidence to prove that this is the case - Professor Zander is, once again, the main attacker. He highlights research into the causes of delay carried out in 14 for the Lord Chancellor s Department and emphasizes that not all delays are the fault of the system; therefore changing it won t reduce delays. According to the research the main causes are the type of case, the parties, judiciary, court proceedings, court administration, lawyers and other external factors. The reforms will probably not resolve the problems if Lord Woolf has made mistakes in identifying the causes of them.
In the U.S.A. Class Actions can take place. This is when a case has involved lots of victims and one person can take a company to court on behalf of all of them, a win would mean everyone receives compensation. Currently in this country we don not have Class Actions so every person would have to take out an individual case, therefore wasting much time and expense. At the moment the legal aid board is looking at ways of introducing them in Britain. An example of a class action case is the Thalidomide Case - in the early 160 s a company sold a drug to pregnant women and as a result their children were born with severe limb abnormalities. In the 170 s a class action was taken out against the company.
If compensation is awarded it is not always paid, either because the defendant is quite literally not able to pay or because they are just avoiding paying. If the defendant doesn t pay, the claimant must take them to court again to enforce the judgment - needless to say yet again more time and expense. In 16 the Payne Committee investigated the problem and recommended setting up an Enforcement Office, but it has not been put in place as the Civil Justice Review regarded it too expensive for the system.
Another proposed change is the integration of the County and High Courts so as to have one single Civil Court . The Gorell Committee investigated this recommendation but rejected it on the basis that if you had one court looking at both small and large claims, then it is likely that the small claims may not get sufficient consideration. The idea was also suggested in the mid 180 s by the Civil Justice Review and received support from consumer organizations. Barristers did not support it, as the rights of audience would pass to solicitors so they could represent clients in all courts, causing London barristers to lose business to local solicitors. High Court Judges objected because they basically thought that having to deal with low profile cases would reduce their status. The Review Commission rejected the recommendation, as there was little support, uncertain financial implications, possible unfavorable affects on the standing of the High Court judiciary and the requisition of a major legislation and extensive implementation. The current Vice Chancellor Sir Richard Scott has said that he thinks eventually the High and County Courts will amalgamate.
The Woolf Report has meant there has been a slight move away from the Adversarial system and towards the Inquisitorial System through the introduction of Case Management and Pro-active Approach. In theory the system could move totally towards that of an Inquisitorial nature, where the judge would take on a much more investigative role. However, although it has been suggested, this change would be highly unlikely as the Adversarial system is too fundamentally ingrained into the English Legal System. It is all down to how different legal systems develop i.e. in Europe they have an Inquisitorial system because it has developed from Roman Law. However, in England and Wales the system developed from Common Law hence why we have an Adversarial system. Consumer groups do argue that an Inquisitorial system would be beneficial for Small Claims cases.
The idea of a No Fault System is particularly concerned with tort law, which includes Trespass, Negligence and Defamation. All of these things rely on having to prove that the other person was at fault. At present we do not have a no fault system so essentially it is quite possible that two identical situations may end up being treated completely differently if one party manages to prove fault and the other doesn t. So in effect one party may receive compensation and the other may not and then be forced to rely on state and disability benefits (if the injury was serious enough). This onus of proving fault is a basic part of English law, however, in some other countries such a New Zealand they do have a no fault system. The advantage of this system is everyone is treated equally as if someone is injured as a result of a crime, accident at work etc, they do not have to take the other person to court to prove that they were at fault for the injuries caused. Instead they just simply put in a claim to a state administered compensation scheme. The disadvantage of the no fault system is that the compensation is paid for by the taxpayer, as the scheme is run by the state. This could be seen as enabling the perpetrator to go unpunished. In 17 the Pearson Committee in this country considered the idea but rejected it.
The Woolf report is a very valuable document as it outlines the failings of the previous approach and provides a concise statement on the objectives of the system. It is true that the Woolf Report has received its fair share of criticism and it is arguable that in some areas of the reforms the disadvantages and problems are still significant. In spite of this the report has proved to be the most influential one of recent history and there is no doubt that the reforms that have come about as a direct result have revolutionized the English Civil Justice System. There is still a great deal to improve and a long way to go before the system is satisfactory, but we must also bear in mind the question; is it really possible to achieve a system that is wholly supported by all and acceptable to everyone? The evidence suggests not.
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