Civil cases

Lord Woolf has got it fundamentally wrong. Putting civil cases under judicial case management is neither necessary nor desirable. Contrary to the general opinion, there is no solid evidence that there is a problem justifying so radical a solution. Michael Zander's Commentary on Lord Woolf's Report on the Civil Justice System. Explain and Comment. No! Lord Woolf had never gotten it fundamentally wrong. Putting civil cases under judicial case management is both necessary and desirable.

His idea is going to be a success, for this will bring about a radical resolution to the civil justice system. It will be yardstick and guide to justify all existing problems. The English civil justice system has not been significantly altered for many years; thus there is a pressing need for the system to be updated in order to be symmetrical with the goings of the present day. To this, Lord Woolf was appointed by the Lord Chancellor in 1994 to review the rules and procedures of the civil courts in England and Wales in order to improve access and to create one set of procedural rules.

The result was a report written in 1996, with the ideals of reforming the civil justice system and making it more accessible to all, including the clients, professionals and the court, hence, entitled "Access to Justice". Michael Zander's commentary report was written opposing Lord Woolf's ideas. He stresses that Woolf had no solid evidence to justify the need for such a radical solution as it is foolish in his opinion to create new reforms for the system without knowing for a certain that the new system will improve matters.

Over the years, litigants and the legal profession have voiced their dissatisfaction over the English civil justice system, bring about a scrutiny on their complains regarding the cost of bringing about or defending civil actions and the long delays till their cases are heard. As a remedy to this, the Civil Justice Review (CJR) was established, and in their report, identified the main deficiencies of the system as being cost, delay, complexity and lack of access to justice.

Courts and Legal Services Act (CLSA) 1990 was later on implemented to provide solutions to the problems identified in the CJR, which are jurisdictional changes, transfer mechanism, procedural changes, mergers and parallel procedures. As can be seen in Anne Grosskurth's article "Can the County Courts Cope? ", the CJR was largely ignored, and with the exception of a shift in the balance of work from the High Court to the county court under the CLSA 1990, no major changes resulted from its recommendations. However, this is not to mean that the pre-Woolf system was unsuccessful.

The reality is that the system was flawed. Taking in mind the combined effects of the CJR and the Heilborn Hodge Report, Lord Woolf produced "Access to Justice" to try patch up where the earlier attempts went wrong. In writing "Access to Justice", his main aim was to make civil proceedings more accessible to everyone that may be in any way involved in a civil procedure, besides also aiming to reduce the cost and time involved in these procedures. The reforms made by Lord Woolf is intended to be an improvement to the old system, and as a starting measure to create a system which everyone will happy with.

Perhaps, it is an idealistic thought to think that every person involved in the court process, will be happy with the system at any one time. In the old system, civil justice procedures are felt to be very exclusive. Lay people found the process of litigation very expensive and too lengthy, making it difficult for them to obtain a comprehensive understanding of the process in which they were entering. So what did Lord Woolf recommend? The concept of judicial case management, which is litigation controlled by the court instead of the parties is the heart of the proposals.

Here, timetables would be fixed and judges will take on a more active role in identifying the issues, deciding the order of treatment, disposing of issues which would otherwise cause delay, controlling disclosure of documents and limiting the use of expert evidence. The principle endorsed by the Woolf reforms is basically one which stresses that litigation should be used as a last resort. It is recommended that ADR should be used to act as a filter and legal aid to be provided to support this proposal.

Where the court considers appropriate or upon request, it would encourage and facilitate this with the power to stay proceedings by allowing the parties to go to ADR. Woolf suggested for the adoption of a three tier system, comprising of small claims (up to i?? 3000, except personal injury claims), fast track (for less valuable or more complex cases in the range of i?? 3000-i?? 10000) and multi-track for all other claims. A procedural judge will be available to allocate the case to the requisite track upon receipt of a defence. In the words of Lord Woolf, the fast track would be 'civil justice without the frills'.

Here, the cost recoverable and the duration of the trail would be limited. Timetables and directions for trail, including expert's reports, witness statements and disclosure of documents will be set by the procedural judge and cost will be limited to i?? 2500, excluding VAT and disbursements. Flexible case management will be provided in the multi-track, so as to accommodate a wide variety of cases and complexity. After a defence is filed, a case management conference would be held, followed by a pre-trail review scheduled some eight to ten weeks before the start of the trail.

In order to encourage parties and their advisers to comply with the new procedures, preventative, as opposed to punitive sanctions, would be imposed, causing defaulters to apply to the court for relief, making the striking out of a claim to be used as a last resort. The pre-action protocol is a new idea, implemented to encourage negotiations with a view to early settlement of claims. Parties are recommended to make contact earlier in order to exchange information with a view to settle their dispute without the need for litigation.