Civil Justice Essays - Free Law Essay

Have the Woolf reforms to the civil justice system been an unmitigated success?

On 26^th Of April 1999, new civil procedure rules and accompanying practice directions came into force. It followed an overhaul of the system designed by Lord Woolf. The new rules followed Lord Woolf's report on access to justice. The ultimate goal was to change fundamentally the litigation culture. The overriding objective is that the rules should enable the courts to deal with cases 'justly'. The reforms were introduced with the purpose of encouraging early settlement of court disputes using several avenues including pre-action protocols, case management technique, cost implications for parties who unreasonably refuse to attempt at negotiation, mediation or other alternative dispute resolution (ADR).

The reforms were necessitated in order to enable and promote more cases to be settled earlier rather than at the door of the court. That was the idea behind the reforms, which as mentioned above introduced pre-action protocols, civil procedure rules, the funding code and use of alternative dispute resolution. Lord Woolf was asked to review the procedures and rules of the civil courts in England and Wales, in order to enhance access to justice, modernise and reduce complexities of rules and terminologies. The old system was identified as being too expensive in terms of costs frequently being more than the claim was worth; very slow process involved in bringing a claim from the start to its conclusion; the system was incomprehensible and too fragmented.

Lord Woolf's view was that the chief cause of delay was the adversarial system played by the lawyers. He further concluded that the system at the time failed to achieve certain important goals such as fairness when litigants were concerned; dealing with cases with reasonable speed; being just in the results that were delivered; offering appropriate procedures at reasonable costs.

The 1999 reforms were generally well received, though the immediate transition obviously caused some tension. In fact, the reforms have contributed significantly to improving most cases in terms of more cases are being settled out of court at an early stage; more cases are moving quickly down the court system. The pre-action protocols are so far, working well to promote settlement before issue of claims and even more, going further to reduce the number of ill-founded claims. Since the introduction of the new civil procedure rules, more parties have however been more likely to ask to use alternative dispute resolutions. Case management conferences aim to make litigation much easier. The Government' first evaluation of the new rules in the paper "Emerging Findings: An early evaluation of the civil justice reforms", found that overall the reforms have been beneficial. It identified as above that cases were settled earlier and litigation was being regarded as a last resort.

The pre-trial procedure is perhaps the most important area of the civil process, since few civil cases actually come to trial. To push the parties to behaving reasonably during the pre-trial stage, Lord Woolf recommended the development of pre-action protocols to lay down the code of conduct for this stage of the proceedings. They have proved to be a major innovation and aim to encourage more pre-action contact between the parties, an earlier and fuller exchange of information and improved pre-action investigation. Compliance with the pre-action protocol is not compulsory, but if a party unreasonably refuses to comply, then this can be taken into account when the court makes orders for costs.

Case management is the most significant innovation of the 1999 reforms. The main aim of this particular approach is to bring cases and trials quickly and efficiently. Traditionally, it has been left to the parties and their lawyers to manage the cases. Tough rules on sanctions give the courts stringent powers to enforce the new rules on civil procedure to ensure that litigation is pursued diligently. The two main sanctions adopted by the reforms include an adverse award of costs, and an order for a case or part of a case to be struck out.

The downside that has been identified is that although the number of cases being settled have increased, the costs involved have increased especially where alternative dispute resolution such as mediation, have been attempted and failed. It appears that some parties have been led to mediate in order to avoid cost implications and in order to appear to go along with directions of the judge, but many are only "half-hearted" in their attempt to negotiate a settlement. Although the government has backed the use of mediation as an alternative dispute resolution, it does not necessarily work out to be cheaper. It follows then that alternative dispute resolution works best as a supplement rather than a substitute to other traditional modes of settlement.

Professor Zander a leading academic felt that the basis for the overhaul although justifiable was fundamentally flawed. His reasoning was that Lord Woolf had identified that the adversarial system was the chief cause of delay, and this formed the basis for most of his subsequent proposals. Professor Zander disagrees with this reasoning and argues that the proposals are unlikely to reform the problems.

The general feeling at this stage however is that cases are generally being heard more quickly after the issue of the claim. However small claims have been identified as taking longer than others. Enforcement of judgements however continues to be a problem. Some statistics show that personal injury cases as an example have been greatly reduced whereas the insurance industry claim that the average costs of personal injury claims has increased. Parties have hailed the reforms as a success nevertheless. Those that were asked responded and appeared to favour the clear framework provided by the pre-action protocol. The rules enable parties to identify key issues at an earlier stage and to have access to earlier disclosure and information.