The aim of this essay is to provide a comprehensive analysis of the impact of Woolf reform on the civil justice system in terms of excessive delays, costs and complexity. Further, salient recommendation and critical appraisal of Lord Wolf will be taken into account in order to examine whether the reform promotes justice or the consequence is an incompetent and ineffective system, followed by some debates and suggestions. Thus, each of these issues will be dealt chronologically.
The prolonged features of civil justice system of delay, cost and complexity were being considered by different committees accentuated the dissatisfaction of the civil justice system. In his 1994-95 Annual Report on the Court of Appeal, the then Master of the Rolls, Lord Bingham, stated that 'the delay in hearing certain categories of appeal in the Civil Division of the Court of Appeal has reached a level which is inconsistent with the due administration of justice (Slapper, G & Kelly D, 2006).' There were also extensive delays in the county courts where the average delay to the trail could be up to three years and five years for the High Court (Elliot, C & Quinn F, 2006). In the higher courts the cost of litigation was only affordable to the very rich and often the legal professions were more benefited from the system than the litigants. Prior to the Woolf reform it was found that for smaller claims the costs of cases were often higher than the value to the claims (Huxley-Binns, R & Martin, J, 2010). The inflexible procedures and rules were often incomprehensible to the clients. A survey by the National Consumers Council in 1995 found that three out of four people in serious legal disputes were dissatisfied with the civil justice system (Seeking Civil Justice: A Survey of People's Needs and Experiences, 1995, NNC). Of the 1,019 respondents, 77% claimed the system was too slow, 74% said it was too complicated and 73% said that it was unwelcoming and outdated (Slapper, G & Kelly D, 2006). Numerous problems generated from the adversarial process which encouraged tactical manipulation rather than collaboration. In an address to Woolf Reform's Inquiry it was established that the oral evidence at trail may have been appropriate when juries were commonly used in civil proceedings but otherwise it slowed down proceedings, adding to costs and delays (Elliot, C & Quinn F, 2006).
The whole civil system commenced to change with Woolf Review of the civil justice system when the Lord Justice Woolf was invited by the Conservative government to review the whole work of the civil courts in England and Wales which are now given effect by the recent government. He began from the proposition that the system was 'in the state of crisis……. a crisis for the government, the judiciary and the professions (Slapper, G & Kelly D, 2006).' He started its rumination with an Interim Report which was being published in 1995 and a final report in1996 in collaboration with expert working parties of experienced practitioners and academics. He stated in his Interim Report that '…..the key problems facing civil justice today are cost, delay and complexity (Access to Justice, Interim Report of Lord Woolf, 1995)', hence he proposed some primary recommendations to redress the problems in his Interim Report but the final Woolf Report , Access to justice, amplified the ideas of formal report and lay out the salient objects which was being implemented in the Civil Procedure Act 1977 and the Civil Procedure Rules 1998 and accompanying Practice Directions, thus constituting the most fundamental reform of the civil justice system which came into force on 26th April 1999. He described his proposal as providing 'a new landscape for civil justice for the twenty first century (Elliot, C & Quinn F, 2006). The principal features of the new civil process are as follows.
The new Civil Procedure Rules replaced the Rules of Supreme Court and the County Court Rules and provided a distinct procedural system so the similar rules apply in both the High Court and the County Court. Section 1(3) of the Civil Procedure Act 1977 stipulates that the general object of CPR is to ensure that the rules are simpler than their predecessors and the system is accessible, fair and efficient thus relocating an attitude which is an open and fair according to the overriding objective of the new rule is set out within CPR r 1.1 (Elliot, C & Quinn F, 2006). Rule 1.2 states that fairness includes ensuring that the parties are on an equal footing to prevent rich litigants from overwhelming poor litigants, saving expense, dealing with a case in ways which are proportionate to the nature of the case ensuring that a case is dealt with expeditiously and fairly and allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases (http://www.allenovery.com/AOWEB/AreasOfExpertise/Editorial.aspx?contentTypeID=1&itemID=50265&prefLangID=410).
One of the significant reforms of CPR rules was the case management whereby the courts became the active administrator of the litigations. The main aim of this approach was to involve the judges in the active management of the litigants by adhering to strict timetables imposed on parties which can be seen in the Vinos v Marks and Spencers plc and Goodwin v Swindon Borough Council, with r.1.4 emphasising that the courts duty is to take a proactive role in the management of the each case (Elliot, C & Quinn F, 2006) and under r 35.3 they a clear duty is imposed on the court to ensure that 'expert evidence is restricted to that which is reasonably required to resolve the proceedings(Slapper, G & Kelly D, 2006)' since Woolf believe that 'without effective judicial control .....the adversarial process is likely to encourage an adversarial culture….where no rules apply (Slapper, G & Kelly D, 2006)'. The case management is a vital feature of the track system thus helping the court to allocate the cases to one of the three track system (small, fast or the multi-track system) depending on the financial value of the claim and time resources, hence the litigants will not be able to slow down thus making it less time consuming and efficient. Further
Further in order to implement the overriding objective Lord Woolf established the Pre-action Protocols. The aim is to persuade an earlier and fuller exchange of information, more pre-action contact between the parties, a settlement before proceedings have commenced thus creating an aptitude to make use of alternative dispute resolution to resolve the affairs. The pre-action protocols seek to encourage a culture of openness between the parties which is achieved through establishing a timetable for the exchange of information and other documents. Compliance with a pre-action is not compulsory but if a party unreasonably refuses to comply then this can be taken into account when the court makes orders for costs (Elliot, C & Quinn F, 2006).Simultaneously it also provides guideline that a single joint or an agreed joint expert should be appointed by the parties where it is required.
The general in the CPR is that the court duty to further the overriding objective by active case management includes both encouraging the parties to use an alternative dispute resolution and facilitating the use of that procedure (r. 1.4(2) (e)) (Elliot, C & Quinn F, 2006) through the amalgamation of pre-action protocols and cost penalties for parties who irrationally refused to attempt arbitration or consider ADR or if the parties have taken unreasonable position in such mediation. Although there might be certain situation where a refusal to attempt ADR is justified but taking into account R(Cowl and others)v Plymouth City Council [2001] EWCA Civ 1935 and Dunnet v Railtrack plc (in administration) seemed that the court adopted a tough attitude to strongly encourage the use of ADR instead of litigation. In the former case the claimants appeal was dismissed but the defendant was not awarded costs because of refusal to try ADR which goes beyond the encouragement of ADR thus violating Art 6 of the European Convention on Human Rights (Huxley-Binns, R & Martin, J, 2010).
It seemed that the Woolf Reform carried out number of significant changes in the civil justice system in order to mitigate the problems of delay, cost and complexity. Tough rules on sanctions give the courts stringent power to enforce the new rules on civil procedure to ensure that the litigation is persuaded which is being suggested in Biguzzi v Rank Leisure plc ( 1999), unlike the new rules where the loser paid the winner's cost it is now treated only as a starting point which the court readily can depart from, imposition of strict time table and encouragement of ADR and less adversarial culture and by improvement of technologies, the new rules have been able to alleviate the problems to certain extent but simultaneously the immediate transition also exploded into chaos and criticisms(Elliot, C & Quinn F, 2006). One of the important critics of the Woolf Reform is Professor Zander who believed that reforms were vitally flawed and criticised the reform on certain grounds. He demonstrated that the recommendation of early preparation of cases, early exchange of information between the parties, more cards on the table at an earlier stage eventually have increased the cost rather than decreasing because of front-loading costs which in his view was never grasped by Lord Woolf. Further he also analyzed that the allocation of track system did not cure the problems of delay and take into account the observation of Civil Justice Council and the Law Society he found that the over all delay had remained the same and also enunciated the view that case management tends to increase rather than reduce costs because it generates more work by lawyers (http://www.newlawjournal.co.uk/nlj/content/zander-woolf). Zander also stated that Lord Woolf wanted the system to be simpler and easier to navigate but according to him Peter Thompson QC paints the true picture who said that the rules of procedure increased by 550 percent, though he believe that the Woolf reforms may have been beneficial is in regard to the adversary culture predicted that the Woolf reforms would do more harm than good(http://www.newlawjournal.co.uk/nlj/content/zander-woolf).
Further according to Lord Phillips he believed that although pre-action protocols made the settle to achieve easily but imposed more work on lawyers. He believed that case management are not always efficient in litigation process due to lack experiences and knowledge and did not reduce litigation costs because of no win no fee arrangements (www.telegraph .co.uk/news/uknews/1392119/woolf-on-track-in-quest-for-a-fair-deal-for-all-html). He told to the BBC Newsnight Programme that the system is creaking either the court raise the fees or cut the staff, either way the system would end up denying effective and efficient justice ( Civil Justice System- close to collapse). Hazel Genn hypothesises that the Woolf reforms have led parties to mediate in order to avoid cost penalties but schemes are no longer offered at low cost by mediation providers and becoming less likely to attract (http://www.asauk.org.uk/go/MiscPage_31.html).
