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Published: Fri, 02 Feb 2018
CRITICAL CHANGES INTRODUCED BY THE WOOLF REFORMS
There has been changes made in the civil system ushered in by the “Access to justice” also known as the Woolf reforms on April the 26th 1999.The reforms were necessary due to a host of problems with the previous system; It was expensive, where costs often exceed the value of the claim; it was slow to conclude cases, litigants used to control the cases and delay tactics were used largely because according to Lord Woolf the system was much too adversarial, some chose not observe the rules and procedure but there was no method of punishing them. The old system was also incomprehensible; it was difficult for litigants to understand the complex methods and procedure. It was unequal, the disparity in resources between the litigants i.e. money was evident, uncertainty; created difficulty in determining what the cost or time scale would be, there was need for a timetable.
The aim of the new civil procedure rules was to redress these problems. The overriding objective of the CPR was for cases to be conducted fairly and justly so far as practicable “(a) ensuring that the parties are on an equal footing;(b) saving expense; (c) dealing with the case in ways which are proportionate:(i) to the amount of money involved,(ii) to the importance of the case, (iii) to the complexity of the issues, and (iv) to the financial position of each party (d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.” [i]
The reforms ushered in the new concept of case management; it shifted litigation from litigants to the judges. Judges now possess a range of judicial case management powers, to set early trial dates and to use their discretion whether to move the dates or not, this has helped curtail tactical and sometimes frivolous applications.
The CPR does lay down guidance including; identifying the issues at an early stage, deciding promptly, which issues need the full investigation and trial and accordingly disposed summarily of the others, encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate.
The Woolf reforms have changed the way a case can be tried; this is subject to the size of the claim. It introduced a new method of tracks to help allocate cases, costs and create a timescale. The tracks were divided into three:-
If the case under consideration is less than £5000 it is categorised under the small claims track, cases under the fast track cannot exceed a day, and also it includes a limit to fees.
The second is the fast track, which hears cases between £5,000 – £15,000; although cases of this amount can be moved to multi-track if it involves a complex point of law. They don’t exceed 30 weeks and one expert witness is allowed.
Finally, the multi-track, these are either complex or cases more than £15,000, a trial window is agreed.
The reform also introduced various mechanisms, one of which was pre-action protocols; this was done to encourage early settlement and exchange of documents. A party cannot be compelled to comply with a protocol, but if proceedings are started, the courts can take failure to adhere into account by imposing sanctions.
Before a claim can be made, there must be a ‘service of documents’ which is done by the courts rather than the parties.
Initiating a claim usually starts with a letter. If the response is not satisfactory, a claim form which could be accompanied by the ‘particulars of claim’ with a statement of value of the claim (this is to help with tracking).
The defendant formerly known as the ‘respondent’ served the particulars of claim must respond by filing a defence or admission or an acknowledgement of service, if it wishes to avoid a default judgment.
Statements of case in general, formerly known as ‘pleadings’ and often become complex, this is done to “set out the facts relied upon so that the court and the parties can ascertain what the dispute is about and the court can take appropriate decisions about its management” [ii] .
Defence of claim allegations, admitting or denying must take place within 14 days unless consent to extension is obtained. Blanket denials are no longer acceptable under the CPR [iii] ; they can then accompany that with a counterclaim which in turn treated like a new claim requiring defence.
Statement of truth, was a vital changed hailed by all parties, it required that all claims, defences etc must have an attached undertaking from the issuer or legal representative , that they believe to be true and if found later not to be, potential contempt or more likely cost order. He also changed the old ‘discovery’ to disclosure in the new rules disclosure what was relevant were; own documents supporting contentions, documents aware of what adverse effect case or support another’s case, so called ‘neutral’ documents that constitute part of the background of the case.
Part 36 offers to settle, were a welcome change though it largely retains old system. They enable the claimant state the amount of compensation sometimes less than damages caused to encourage respondents to settle, also, the defendant can make an offer to settle at any time before the claim is issued or during proceedings.
The Civil procedure reforms attempts to redress the inequality of the old system equal footing, the established approach in the UK, legal aid was provided by the very poor, however that was replaced since 2000 by the conditional fee agreements under the Conditional fees Agreements regulation 2000; due to the probability of other cost if the case is lost, litigants are advised to take out an ‘after the event premium’, this insurance is paid to cover cost of proceedings.
The reforms also encourage the use of Alternative dispute resolution (ADR), The Woolf reforms advocated for litigation to be avoided wherever possible, ADR is not mandatory but largely encouraged but failure to use alternative dispute resolution can have consequences in seen in Dunnett v Railtrack plc  ECWA Civ 302. Dunnett who lost the case at first instance on appeal was advised to use ADR. However rail tracks was not interested in engaging in ADR. Railtrack won the appeal an application for 1.7 million costs. It was held that though Railtrack won the appeal, the judge failed to award those costs because they failed to engage in ADR.
The civil justice system has been made better as a result of these reforms; the immediate effects after the introduction of the CPR showed the figures drastically reduce .350,000 actions were started in the high court in 1990 and 19991;By 1996 Proceedings commenced in the High Court have more than halved to 142,505 since the introduction of the reforms, over 20,000 claims were made in 2000. By 2005, the figures fell below 20,000 [iv] .These figures clearly indicate more litigants are embracing ADR and settling out of court and taking the mediation route.
Also, the introduction of Summary Assessment of costs has been generally seen as a success. Since the introduction of the CPR, a judge may have to assess the costs of a hearing or trial immediately if it lasts for more than a day, “streamlining the process rather than a detailed assessment to be undertaken by a separate costs officer after the proceedings have finished” [v] .
It has also succeeded in making the system less complex by producing one rule book for the high court’s and county court, previously a summons had to be issued to start a case in the County Court and a writ was needed to start a case in the High Court, now, it is just a Claim Form document in both courts. In addition , using simpler terminologies has also helped litigants.
However, the effects of the CPR have not all been positive; reduction of costs which was a major objective of the reform but front-end loading of costs caused by the introducing the pre-action protocols has led to an increase in costs rather than a reduction. Letters are written, full disclosure and exchange of expert reports, what this means is that, a case is potentially litigated twice; first before proceedings are issued and again when it gets to trial. Although, it often ensures that claims are correctly prepared and well thought-out, for the claims that do go to trial, this is extremely expensive and strenuous.
In March 2001, the 3rd survey of the English Law Society’s Woolf Network survey found that 45% of respondents thought that front-loaded costs were a problem. In February 2002, 81% of respondents said that they did not agree that the new procedures were cheaper for their clients [vi] . Lord Justice May was cited s having highlighted costs “as the biggest problem which could endanger the success of the CPR” [vii] .
The system is still too expensive, the conditional fee agreement was introduced to help litigants, the after event premiums has proved more expensive with larger premiums than the old legal aid, which further increases inequality between litigants.
The pendulum has swung too far in the direction of the judges which could result in the over involvement of judges. It is difficult almost impossible that after a short read, for a judge to have better understanding of a case than the lawyers involved creating a timescale; which could lead to unjust and inconsistent decisions.
It is also important to know that the number of cases have dropped drastically from 350,000 a year in 1996 to less than 20,000 in 2005. Although this could be seen as a positive result, the behavioural pattern of human beings are still the same, claims are being sought with the same regularity as always if not more due to the new compensation culture. What the figure above show is that disputes are not being resolved through the courts; this could be viewed as evidence that actually people are not really getting ‘access to justice’.
Many important changes have been introduced however some of the changes made were merely cosmetic, examples are the terminology “originating summons” is now a claim form, “discovery” is now disclosure, “pleadings” now known as statements of case, “plaintiff” claimants, the “respondent” replaced with defendant; etc.
In conclusion, the Woolf reforms have been revolutionary and have given the civil justice system an overhaul. The changes have been far reaching, fairer to litigants and offering appropriate help. It has improved the system by introducing case management, advocating for ADR and creating a simpler system and encouraging the use of technology.
However ,the CPR has been spectacularly unsuccessful in achieving its aim of cost control rather it has made things more expensive, which is likely to alienate people with low incomes and prevent them from taking actions against acts of injustice. Steps should be taken to create certainty to the cost regime.
I think the reforms have been relatively successful but the implementation of the proposals should not be too rigid, if there are more efficient ways to achieving the overriding objectives, it should be used.
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