Reform the civil justice system

Through criticism voiced by actors within the civil justice system, namely lawyers, judiciary, and litigants – it was apparent to many that effective and accessible civil justice was being compensated by an overabundance of adversarial tendencies. The civil justice system had become so unreliable and costly for the average citizen that it was in a state of crisis. Based on these reasons, Lord Woolf introduced his extensive answer to the failing system in a report entitled Access to Justice. Lord Woolf analyzed the civil justice system, concluding that the main problems were cost, delay, complexity, and uncertainty of outcome.

As a result, Woolf proposed reforms that would attempt to alleviate such problems and in due course change the face and culture of litigation from adversarial to inquisitive. However, Woolf's main objective of creating a balanced civil system in which cases are dealt with justly and cost-effectively has proven more difficult to achieve. Through implementation of Woolf's proposed timetables and a more rigid system less hospitable to a high volume of diverse cases, faster civil justice has come at an extremely high price.

Therefore, complex problems such as front-loading, increased cost, and hurried cases, have shown that Woolf's reforms have not reached their intended goals displaying an inadequate reform system. The problem of front-loading has been greatly realised by many critics as a major drawback of the Woolf reforms. Front-loading has come as a result of "faster" civil justice since settling is a central objective of the reforms. 2 Lord Woolf's reforms pushed for more cases to settle so that the trial process would not have to be exhausted, and instead all other resources may initially be used.

While in writing this appears to be a logical solution, in practice unforeseen costs and wasted effort spent in preparation is proves otherwise. With more emphasis on the desire for cases to settle, more work goes towards the earlier management and frontloading of costs occur. 3 Professor Michael Zander, author of Cases and Materials on the English Legal System, has made substantial criticisms of the Woolf Reforms and clearly identifies the problem of frontloading. Zander explains, "…

one of the effects of the protocols has been front-loading of costs not only for cases that are ultimately contested but equally for those that settle – including cases that would previously have settled at lower cost. "4 As one can see, front-loading is a major problem resulting from the reforms because it attempts to shift volumes of cases to settle but does not reduce cost and threatens fair justice. Woolf attempted to create less traffic by having less cases go to trial but this ultimately crowded the early management of cases and increased costs by having lawyers do more work.

Kate Malleson, author of The Legal System explains this disadvantage to justice when she states, "The new system imposes a regime which benefits the very small proportion of cases which come to court at a cost to the vast majority which settle. " The objective of speedy civil justice by having more cases settle seems to move the problem of cost instead of balancing out the system. Therefore, front-loading proves that Woolf's initial objective of creating a cost-effective system is obstructed by the higher costs being incurred by participants due to settlement demands.

Yet another problem apparent under the reforms is hurried cases due to rigid timetables proposed by Lord Woolf. Lord Woolf implemented stricter timetables by which different stages of the litigation should be completed and imposed by the court. Fast track cases (5,000-15,000), for example, must have a trial date set within 30 weeks and a hearing that is normally expected to be completed within one day. Moreover, there are fixed times for serving a defence and disclosing evidence and failure to comply with the judge's demand could result in cost penalties.

A questionable result of strict timetabling has been the effect of such schedules on quality of justice. For example, after viewing "Fast Track Case Study: The Trial" conducted by JSB Training Videos, timetabling seems to create a goal that at times may obstruct the more important goal of justice. 6 Under the reforms, judges have the right to limit defence arguments and take control of the courtroom so that a certain timetable may be met. Though timetabling is an attempt to create efficiency within the system, at times it seems to over-rule the trial at hand so much so that cases are brought in and out of trial as quickly as possible.

This limit of litigation may be damaging to cases that need more litigation at a slower pace but cannot afford to incur embellished costs. 7 Moreover, the enforcement of timetabling can vary from judge to judge, causing inconsistency and unfair practices within the courtroom also threatening equal justice to all. 8 If Woolf's main initiative was to create a system in which cases are dealt with justly, procedures such as timetabling seem to be rigid and disregarding of the different needs of different cases.

9 In addition, tight deadlines may very well create inefficiency by forcing cases to go to trial due to lack of time in which to resolve them by agreement10. Overall timetables seem to impose strict schedules that not only may threaten quality of justice but might also cause inconsistency and even delay at times. In order to fully analyze the success or failure of the reforms the benefits and disadvantages must be considered. While the Woolf reforms have caused increased costs, delays, and at times arguable decreased quality of justice due to timetables – they have also produced positive results based on a more inquisitorial approach.

The new system has prompted for a less adversarial approach, which has gotten more cases through the system while avoiding old distractions such as "hired-gun" experts and delay from lawyers. 11 The reforms have given the civil justice system much needed structure, forcing the culture of litigation to shift from a complex adversarial system to a regimented inquisitorial one. Michael Zander, one of the reforms most notorious critics suggests, "The culture of civil litigation may have changed for the better but costs and delays are still bad.

"12 Therefore, the reforms have produced a positive effect on cultural shift, however because they have not meet central goals of reducing costs and providing equal justice to cases, in implementation they have failed. In studying the effects of the Woolf reforms, all enforced changes are relative to new circumstances. Cases have gone through the system in a speedier fashion but has quality of justice been compensated as a result? Moreover, is the "speedier justice" a result of the rules or is it merely due to lawyers conducting more negotiations before proceedings are issued to avoid increased cost?

13 Because the Woolf reforms prompted such an abrupt change of the system at the root, many of these questions seem plausible. It seems that the reforms, for the most part, created a shift in problems rather than an anecdote for them. For example, the overall time to resolve a dispute may be the same as prior to the reforms, but because the court stage of the process is further down the line and sparingly used it may seem otherwise. 14 Furthermore, in light of increased costs the reforms have clearly made the system more expensive, which was not Woolf's intended goal.

A more costly system is unfortunately a less accessible one for the masses and with cost being an important motivating factor for participating in litigation; expensive civil justice may threaten its use. The overriding objective of the Woolf reforms, outlined in Access to Justice, was to "enable the court to deal justly with cases… ensuring that the parties are on an equal footing, and saving expense. "15 The reforms, however, have not meet these goals due to increased cost and threat to justice based on a "speedy" mentality that limits litigation, ultimately confirming that the Woolf reforms have presumably failed in theory and practice.