In the United Kingdom, the Civil Justice System aims to provide an avenue for speedy, cheap and simple process to the dissolution of disputes between individuals or organizations. Typically, the claimant sues the defendant for his loss and injury caused by the latter. The burden of proof is usually on the claimant. Major changes have been made to the civil justice system in recent years. The Lord Woolf came out with a report, Access to Justice, which was published in 1996. This report is the 63rd which seeks to give a comprehensive review of the civil justice system. Lord Woolf's aim was to reduce the cost, delay and complexity of the system and increase access to justice (Elliott, C. and Quinn, F., The Civil Justice System, 2007, pp.474).
The Court Structure
Civil actions are between individuals. The state merely provides the legal framework within which the parties seek to enforce their mutual rights and obligations, for example, tort or matrimonial disagreements and the problems under contract. Up to Court of Appeal level, each judge follow the decisions of all the higher courts above it but need not follow the views of other judges in the same court or a lower court. The Court of Appeal is normally bound by its own previous decisions in civil cases as well as those of the House of Lords. For criminal cases, the state is not involved other that the provisions of court and personnel to manage the litigations between the parties to the disputes. The hierarchy of the court is as shown in Diagram 1, it begins from the County Court, then to the Court of Appeal and finally to the apex court, the House of Lords.
Judicial Committee of the Privy Council
Magistrates' Courts
Trials of summary offences, committals to the Crown Court, family proceedings courts, youth court
House of Lords
Court of Appeal
High Court
Queen's bench Division - The Lord Chief Justice
Chancery Division - The Lord Chancellor
Family Division - The President
Crown Court
Trials indictable offences, appeals from magistrates' courts, cases for sentence
County Court
Majority of civil litigation subject to nature of claim
Figure 1: The Structure of Civil Court
The Procedure for Commencing Civil Litigation
Any private or public having appropriate standing in a dispute has the right to commence civil proceedings. Almost all proceedings are start with the same document which is claim form. The claimant generally commences his proceedings in the first instance in County Court and, if dissatisfied with the court decision can appeal to High Court and thereafter to Court of Appeal and finally to the apex court, the House of Lords. Lastly, the loser has to pay the compensation and court's fees for the winner if they bring their case to the courts.
Shortcoming of the Present System
Problem Identified by Woolf Committee
The overriding objective of the Woolf Committee was to make civil justice system accessible to all. The system must be speedy, cheap and not complexity. These are three inter-related problems. According to Lord Woolf's review, over 40% of cases below the amount of £12,500 the claim for cost by the party exceeded the claim amount. And because of the complexity of the process, lawyers were usually needed, making the process expensive. The sheer length of civil proceeding also affected the size of the bill at the end.
Besides that, The Civil Justice Review1985 discovered that there were long delays in litigation. In the County Court, it takes 3 years for a trial to take place from the time an incident took place and in the High Court is takes 5 years. According to that report such delay caused intolerable psychological and financial burden to the claimants. The claimant and his witnesses might already not be able to remember most of the evidence.
This undermined the justice of the trials Lord Woolf in his report also discovered that the adversarial process encouraged tactical maneuvering by the parties' lawyers and oral evidence at trials slowed down the trial process thus, incurring additional delay and costs. Furthermore, an out-of-court settlement can be fair or unfair. Most of the time, too much emphasis was placed on oral evidence at trial and this slows down proceeding, thus, adding to cost and delays.
Proposals by Woolf Committee
On April 1999, new Civil Procedure Rules and accompanying Practice Directions came into force (Elliott, C. and Quinn, F., The Civil Justice System, 2007, pp.480). Lord Woolf's aim was to encourage early settlement of dispute through pre-action protocols, early disclosure and use of alternative dispute resolution processes. The pre-action protocol identified that exchange of information between the parties to encourage out-of-court settlement. The unification of the two procedure rules, Lord Woolf said, would make the process simpler rather than being daunted by legal jargon.
Moreover, Lord Woolf seeks to unify the procedures between High Court and County Court. The two procedure rules are Rules of the Supreme Court and County Court Rules have been replaced with a single Civil Procedure Rules 1999 supplemented by Practice Directions from time to time. On this procedure rules, Lord Woolf hoped that the drop in the use of legal jargon would help to support a change in attitude, away from a legalistic, technical interpretation (Elliott, C. and Quinn, F., The Civil Justice System, 2007, pp.481).
The court allocates the case to the most appropriate track depending primarily on financial value of claim, though other factors like the case's importance and complexity can be taken into account (Elliott, C. and Quinn, F., The Civil Justice System, 2007, p.486). Normally:
Small claim track cases deal with action with a value of less than £5,000 or £1,000 for personal injury cases
Fast-track cases deal with actions of a value between £5,000 and £15,000
Multi-track cases deal with actions with a value higher than £15,000
Besides that, Lord Woolf recommends to the court to case management with strict time-tables and penalty for unreasonable delay. Further, the introduction of case management and sanction under the new procedure rule would ensure the case be pursue diligently. Failure to do so would be penalized by the award of costs or the case being struck off. It may be added that a case which may have to be taken through the hierarchy of the court structure as shown in Diagram 1 can caused numerous hardship to the claimant in terms of expenses and psychological breakdown.
Criticisms of Lord Woolf Report
Some criticisms have been leveled at Lord Woolf proposal; through it has received unanimous support. The criticisms by Elliott and Quinn are that lawyers discover that Civil Procedure Rules was altered for frequently including the new Practice Directions to overcome the disadvantages of new Rules. It makes more difficult for lawyers to maintain with the momentum of change.
Lord Woolf hoped that pre-actions protocol can settle the case out-of court, but Hazel Genn said that a non-specialist lawyer may be unfamiliar with court procedure and reluctant to fight the case in court. Therefore, not encourage their client to hold out against an unsatisfactory settlement. Specialist lawyers on the other side may take advantage of this inexperience, putting on pressure for the acceptance of a low settlement. He also said that the dynamics of dispute resolution vary significantly in relation of power and resources within litigation. Clearly, these factors affect the fairness of out-of-court settlements.
On the other hand, according to Elliot and Quinn, the claimant may lose 'the chances of being awarded a better settlement if the case goes to trial and he wins'. Besides, such out of court settlement create injustice 'because the parties usually hold unequal bargaining positions.
Professor Zander (1998) also has reservation of Lord Woolf proposal. Zander identified seven causes of delay and he believes that not all the reasons for the delay were the fault of the system. His case management is appropriate in a minority of cases. It is more appropriate to identify them and the courts do not have a skill or the inclination to undertake case management. The court in an attempt to settle dispute early may cause injustice through restricted oral evidence and short sharp trial.
According to Zander, procedural timetables for the fast-track doomed to failure because a huge proportion of firm, will fail to keep to the prescribed timetables. If the judges did impose severe sanctions when lawyers failed to comply with timetables deadlines, it would usually be the litigants rather than the lawyers who would be penalized. Lastly, Zander argues that in many civil cases the claimant wins and the defendant is an insurance company who currently pays the claimant's costs. If, in future, the court can only order the loser to pay fixed and fairly low costs, then the claimant's lawyers will not be able to claim back everything that it was in fact necessary to spend on the case in order to win.
Conclusion
As a conclusion, the Lord Woolf's report has received support and reservation. Clearly, the civil justice system still has to improve. Some proposal has not been implemented, mainly because of expensive and inefficient, thus it could move to an inquisitorial system. Lastly, the government considered to develop in technology to the Court Service such as retail banking, but the senior judiciary are concerned that lack of investment in the civil courts. The Master of the Rolls has stated: 'Our civil justice system must keep abreast of technological development that are happening elsewhere.' But nevertheless, I strongly believe that the Civil Justice System can be better than before.
