Offers to settle would take over the old process of making payments into court, where either party would be able to make and offer, before of after the start of proceedings. Orders for cost would depend on all the circumstances and at the court's discretion, but as a general rule, where the plaintiff recovers the same or less at the trail than the sum offered by the defendant, the defendant would be entitled to his or her costs from the date of the offer. Where the plaintiff recovers the same or more than his of her offer to settle, he or she would be entitled to an enhanced rate of interest on the sum recovered.
Now, both parties would be required to share a single expert. The expert will be employed by the court as an independent adviser, and in the case of conflicting expert opinion, a co-operative approach would be adopted, involving a joint investigation and a single report. Based on what Lord Woolf recommended, Michael Zander was of the opinion that this fundamental change would be just as likely to increase cost, as lawyers would now have to meet deadlines artificially imposed by the courts, thus necessitating radical changes in culture. So did Woolf get it fundamentally wrong?
Admittedly Woolf's proposals are not perfect, but at least some kind of effort was put to positively improve the civil justice system. The term fundamentally wrong as coined by Zander is too harsh, for it cannot be evaluated till fully implemented. It is to be expected that there would be some glitches in the implementation for after all, it is a big change to the English civil justice system and critics should give it a chance to get over its teething problems before relegating it to a failure. As mentioned above, Zander pointed out that Woolf doesn't know for a certainty how successful his proposal will be.
This is due to the fact that there was no significant body of research done to back up Woolf's claims in the proposal, and neither will there be any significant body of research within the foreseeable future. But is research necessary before any significant changes are made to the civil justice system? Before Lord Woolf prepared his proposal, he held a wide ranging and active consultation. Seven seminars were held, spread throughout the country, involving over a hundred judges, lawyers, advisor, and users of the court services, which translated, basically involves everyone who has first hand experience with the civil justice system.
It is deeply regretted that a full proper research could not be done, but the methods adopted by the inquiry of seeking the view of wide numbers of those directly involved in civil litigation can provide a reliable alternative basis for the conclusions of the Inquiry and its recommendation. In Dick Greenslade's report – Objections to Woolf, the clear result of these seminars was that the civil justice system was in need of fixing, major surgery was required and a broad, though not universal, acceptance of case management as a key factor in the necessary change.
These seminars were backed up by many meetings with particular interest groups, visits to lawyer offices, and meetings with groups of clients. It is in no doubt that the Woolf Inquiry will be greatly aided should there be pre-existing continuous programme of research, however, as Woolf had only a limited timescale to come up with his proposal, which is in 2 years time, the consultations he had through the seminars are sufficient to justify the conclusions and recommendation that he has made.
Thus the basis of Lord Woolf's enquiry was formed by the overwhelming consensus which supported the broad conclusions that came from the seminars. It is claimed that case management is neither necessary nor desirable. Is this true? Obviously not! There are problems in the civil justice system, as had been identified by Anne Grosskurth who also wrote the report on the aftermath of the CLSA 1990, Heilbron Hodge Report and even the seminars conducted by Woolf, and it all pointed to one thing, reforms needed to be done with the administrative system. Dick Greenslade wrote in Objections to Woolf that "If it ain't broke, don't fix it!
", meaning that not disputing there were problems, there was no justification for a major surgery as the system wasn't broke. Maybe so, but something more than mere tinkering need to be done with the system to keep it up do date. Bill Onwusah article – "A Woolf with claws? " discusses the role of IT in the Woolf Report. As mentioned there, the interim report relies heavily on IT to address the problems of cost, infrastructure and strategy. Proposed IT recommendations is that the IT requirements of case management be integrated into the Local County Court System (LOCCS).
I fully support the idea that judges should be equipped with PCs, video and telephone conferencing to be available, primary source materials to be kept in electronic form and so on as we are now in the new millennium, thus there is a need to evolve and keep in touch with the ever changing technology and ways of the present world, not staying in the era of horses and carriages. If case management is implemented, Lord Woolf stated that the landscape of civil litigation will be fundamentally different from what it is now.
Firstly, litigation will be avoided wherever possible, that is people will be encouraged to start court proceedings to resolve disputes only as a last resort, which is after using other more appropriate means when available. Secondly, it will be less adversarial and more co-operative. There will be an expectation of openness and co-operation between parties from the outset, supported by pre-litigation protocols on disclosure and experts. Thirdly, litigation will be less complex, meaning there will now be a single set of rules applying to the High Court and the county courts, making the rules simpler.
Fourthly, timescale of litigation will be shorter and more certain, that is all cases will progress to trail in accordance with a timetable set and monitored by the court. The cost of litigation will be more affordable, more predictable and more proportionate to the value and complexity of individual cases as there will be fixed cost for cases on the fast track, while estimates of cost for multi track cases will be published or approved by the court. Next, parties of limited financial means will be able to conduct litigation on a more equal footing.
Those who are not legally represented will be able to get more help from advice services and from the court. Now, the Head of Civil Justice will have overall responsibility for the civil justice system, and heavier and more complex civil cases will be concentrated at trial centres which have the resources needed, including specialist judges, to ensure that the work is dealt with effectively. In order the make case management work, the judges will be given training they need to manage cases. An ounce of truth can be found in 2 of Michael Zander's articles, which is "Are there any clothes for the Emperor to wear?
" and report on the government plan 1998 which both seem to point out the flaws of case management, but arguably, with enforcement and funding, with the support of both the lawyers and judges, this would be a workable solution, for team work is the key answer. Sir Peter Middleton commented that if implementation is properly managed and given the necessary training, the new arrangements will quickly begin to deliver results. He is impressed by Woolf's proposal and believes that a change in culture can be achieved, quality can be maintained and ultimately, cost and delay can be improved.
He conceded that there might be glitches, but not something which cannot be handled. In fact, he feels that his is a catalyst for further changes. Hence, to sum it up, Woolf's proposal can be viewed as a blueprint for better development in the future. Contrary to the general opinion, there is no solid evidence that there is a problem justifying so radical a solution. What more evidence is needed? The failure of the CLSA 1990 and the constant problems of cost, delay, complexity and lack of access to justice plaguing the system should be evident enough. Delay and cost is not something new to the civil justice system.
To curb the system of these nagging problems, a radical reform is needed, as opposed to minor adjustments. Admittedly, research would have greatly aided the Woolf Inquiry, but we have a very reliable alternative – the method adopted by Lord Woolf for the basis of his enquiry is satisfactory. In conclusion, upon every implementation of a new idea after being used to a particular set way for eons is bound to cause some teething problems in the short term, but once this is sorted out, the benefits that will be reaped in the long run will far outweigh the initial worries.
In making his announcement for the implementation of Woolf's proposal, Lord Irvine stated his beliefs that the reforms would successfully tackle the unacceptable levels of delay, complexity and cost attached to the current system, and that it would also promote certainty and fairness for litigants. Woolf's proposal will be successful as long as it receives the necessary government funding.