Opinion Comment

Published: December 14, 2013 01:24 IST | Updated: December 14, 2013 01:24 IST

A dream on the theme of civil justice

Arvind Sivaramakrishnan

The best results of the Woolf reforms seem to have been in cases involving smaller sums of money

At first sight, it could be a dream, perhaps even a fantasy a civil justice system in which lawyers exchange full
information in advance and give their clients prior estimates of time and cost; the parties are expected to try and
settle without litigating, and either of them can offer to settle at any time. If a court does take a case, it hears only the
key points at issue; cases are allocated to fast-track or multi-track courts according to the complexity or size of the

claims. If expert evidence is needed, only single experts are appointed and serve neither one party nor the other.
Judges, for their part, act as trial managers who set tight timetables and levy penalties for deadlines missed, all with
the aid of the latest IT systems.
Yet that was what Lord Woolf, the then head of the English civil judiciary or Master of the Rolls, envisaged in his
government-commissioned report, Access to Justice, which was published in 1996. The first major proposal for
reform in the English and Welsh civil system for 50 years, the report got immediate attention throughout the judicial
Anglosphere.
Woolf clearly meant his proposals to improve access to civil justice, to cut costs, and to put the parties on an equal
footing. There was widespread agreement at the time that civil litigation in England was unpredictably, excessively,
and disproportionately expensive; costs varied between 41 and 96 per cent of claim values. The time cases took was
equally problematic; four years was not unusual, and according to Woolf the main agents in complicating and
prolonging cases were lawyers themselves.
Supported by a lot of favourable publicity, the proposals were widely welcomed, not least for proposing pre-action
protocols whereby lawyers would get to know their case and put it to their opponents before launching proceedings. In
February 1997, the then government passed the Civil Procedure Act, and in 1999 the new Civil Procedure Rules (CPR)
took effect.
Nearly 15 years after the Woolf reforms were introduced, the main conclusion is that they are a partial success. The
best results seem to have been in cases involving smaller sums of money, with at least an initial decline in the number
of claims reaching certain courts; the Queens Bench Division of the High Court saw its caseload fall by nearly a fifth
in the first year. Many lawyers also think that the duty on parties to cooperate has worked well, as settlements are
often reached during the pre-action protocol period; the so-called Part 36, which enables either party to propose
settlement at any stage, has also received much praise.
The problems, however, show the difficulty of making public policy both in technical respects and as an attempt to
change a working or even wider culture. In particular, costs have gone up, with lawyers preparing cases in detail
irrespective of whether or not pre-trial settlement is reached; costs are now front-loaded. Secondly, the time taken for
cases involving smaller claims is on average about 13 months, and according to several analysts Woolfs conclusion
that lawyers were the main cause of delays and complications was somewhat hasty. Under the earlier system, lawyers
would often settle without having to prepare detailed documents, but now even the initial letters have become
something of an industry in themselves. Further delays are caused by the time it takes to identify suitable experts and
obtain appropriate information from them, and lawyers accustomed to the adversarial legal system have not taken
readily to the idea of single experts. On top of that, outside London the need for suitably experienced judges has
sometimes caused additional delays.
One area where the reforms have made little difference is the volume of higher-level financial litigation, even if some
large businesses now find the process so expensive that they settle almost every dispute outside the courts. Some
corporates have taken to what one lawyer calls blackmailing opponents with threats of litigation, so that the other
parties settle.
Some of the problems can be addressed without apparent difficulty. For example, the Judicial College, formerly the
Judicial Studies Board, holds training days for judges; with many of the senior judiciary making a point of being
accessible to their colleagues in the lower courts whether at such events or elsewhere, information and advice can flow

freely.
More intractable problems, however, have to do with political will and the wider public culture. None of the five
British governments which have held office since the Woolf report appeared has even attempted to fund the up-todate IT system which is essential for the system to work; Woolf himself says that in the current economic climate new
funding for that is unlikely to be approved. Thirdly, civil legal aid was effectively ended in 1995, when conditional fee
(also called no win no fee) arrangements were finalised. The Access to Justice Act 1999 abolished legal aid for
personal injury cases; although the move was not connected with Woolfs proposals, it has created an incentive for
lawyers to cherry-pick cases which they are sure of winning. That restricts ordinary peoples access to justice and
could also mean that difficult cases which could set precedents or otherwise develop the law may not reach the courts
at all.
Conditional fees, nevertheless, are now widely used in other Commonwealth jurisdictions, such as South Africa, and
parts of Canada; they also figure in the United States. In the English system, fixed-cost procedures, for their part, hit
poorer claimants hardest; in fact they do not even include lawyers fees. Poor claimants also face a large proportion of
repossession and debt orders, and there is evidence that certain courts have even recovered more than they cost.
Even non-court proceedings, however desirable, can raise awkward issues. Arbitration seems to have become a
relatively standard element in various types of business contracts, but in other types of cases mediation is so strongly
expected before litigation is considered that the term mediation coercion has emerged. In addition, non-court
settlements tend not to address genuine and possibly justified feelings of injustice or wrong. Moreover, the contending
parties themselves are frequently responsible for delays, and they often undertake mediation not with a view to
reaching early settlement but so as to avoid the costs of litigation. As for civil trials themselves, the transformation of
judges into trial managers could connote the beginnings of a move away from the adversarial judicial system and
towards the beginnings of an inquisitorial one, at least in civil matters.
Irrespective of the problems though, a return to the old ways is not foreseeable, and the reforms have been at least
partly copied in several civil systems. In April 2009, Hong Kong introduced a version without pre-action protocols
and front-loading. Woolf himself has called on English judges to enforce the procedures more strictly, and has cited a
Singapore judge who sentenced a time-wasting lawyer to three months in prison. As one commentator says, this
revolution has only just begun. In addition, India is some way ahead of various other jurisdictions in that almost all
High Courts have had mediation centres annexed to them, where litigants can receive mediation services free of
charge; this addition to the civil process was first introduced in 2005. As for other aspects of Indias civil system, it
could be that somewhere in the upper reaches of the Indian judiciary Indias own Woolf stalks yet unseen.
(Email: arvind.sivaramakrishnan@thehindu.co.in)
Keywords: civil justice, civil justice system, non-court settlements, Queens Bench Division of the High Court, Master
of the Rolls, Lord Woolf
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