The Principles
1. In my interim report I identified a number of principles which the civil justice system should meet in order to ensure access to justice. The system should:
(a) be just in the results it delivers;
(b) be fair in the way it treats litigants;
(c) offer appropriate procedures at a reasonable cost;
(d) deal with cases with reasonable speed;
(e) be understandable to those who use it;
(f) be responsive to the needs of those who use it;
(g) provide as much certainty as the nature of particular cases allows; and
(h) be effective: adequately resourced and organised.
The problems
2. The defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no one with clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court.
The basic reforms
3. The interim report set out a blueprint for reform based on a system where the courts with the assistance of litigants would be responsible for the management of cases. I recommended that the courts should have the final responsibility for determining what procedures were suitable for each case; setting realistic timetables; and ensuring that the procedures and timetables were complied with. Defended cases would be allocated to one of three tracks:
(a) an expanded small claims jurisdiction with a financial limit of £3,000;
(b) a new fast track for straightforward cases up to £10,000, with strictly limited procedures, fixed timetables (20 30 weeks to trial) and fixed costs; and
(c) a new multi track for cases above £10,000, providing individual hands on management by judicial teams for the heaviest cases, and standard or tailor made directions where these are appropriate.
The second stage of the Inquiry
4. My general analysis of the problems in the present system, and the broad agenda for reform which I proposed in the interim report, have provided the foundation for the more detailed work I have carried out in the second stage of the Inquiry. This has concentrated on particular areas of litigation where, in my view, the civil justice system is failing most conspicuously to meet needs of litigants. These areas are medical negligence, housing and multi party litigation. I have also developed more detailed proposals on procedure and costs for the new fast track. Another focus of special attention was the Crown Office List, which has a particularly important function in enabling individual citizens to challenge decisions of public bodies including central and local government.
5. In all these areas a particular concern has been to improve access to justice for individuals and small businesses. I am also concerned about the level of public expenditure on litigation, particularly in medical negligence and housing. In both of these areas substantial amounts of public money are absorbed in legal costs which could be better spent, in the one case on improving medical care and in the other on improving standards of social housing. An efficient and cost effective justice system is also of vital importance to the commercial, financial and industrial life of this country and I was anxious to improve this, especially because of the evidence I received that there was a substantial risk of the existing system changing our competitive position in relation to other jurisdictions. Finally I was anxious to ensure that the judiciary and the resources of the Court Service were deployed to the best effect.
6. All the work I have carried out in the second stage of the Inquiry has confirmed the conclusions I reached in the interim report about the defects in the present system. This report therefore builds on the contents and recommendations of the interim report by:
(a) providing greater detail as to the principal recommendations in the interim report;
(b) identifying the problems in those areas which have received special attention during the second stage of the Inquiry and the solutions I am recommending to meet those problems;
(c) describing the new rules; and
(d) making clear any change in my approach since the interim report.
Rules of court
7. An important part of my task in the Inquiry was to produce a single, simpler procedural code to apply to civil litigation in the High Court and county courts. This report is accompanied by a draft of the general rules which will form the core of the new code. In the second part of the Inquiry I have looked in detail at the specialist jurisdictions of the High Court with a view to accommodating them so far as possible within the general procedural framework embodied in the core rules. As a result of the work done by the Inquiry, it is apparent that a great many of the existing specialist rules are no longer required. Work is continuing on the more limited body of special rules which are still considered essential. Here I await with interest the views of those engaged in the specialist jurisdictions who could not express a formal opinion as to what extra rules are still needed until they had seen the general rules which have been prepared by the Inquiry.
The new landscape
8. If my recommendations are implemented the landscape of civil litigation will be fundamentally different from what it is now. It will be underpinned by Rule I of the new procedural code, which imposes an obligation on the courts and the parties to further the overriding objective of the rules so as to deal with cases justly. The rule provides a definition of 'dealing with a case justly', embodying the principles of equality, economy, proportionality and expedition which are fundamental to an effective contemporary system of justice. These requirements of procedural justice, operating in the traditional adversarial context, will give effect to a system which is substantively just in the results it delivers as well as in the way in which it does so.
9. The new landscape will have the following features.
Litigation will be avoided wherever possible.
(a) People will be encouraged to start court proceedings to resolve disputes only as a last resort, and after using other more appropriate means when these are available.
(b) Information on sources of alternative dispute resolution (ADR) will be provided at all civil courts.
(c) Legal aid funding will be available for pre litigation resolution and ADR.
(d) Protocols in relation to medical negligence, housing and personal injury, and additional powers for the court in relation to pre litigation disclosure, will enable parties to obtain information earlier and promote settlement.
(e) Before commencing litigation both parties will be able to make offers to settle the whole or part of a dispute supported by a special regime as to costs and higher rates of interest if not accepted.
Litigation will be less adversarial and more co operative.
(a) There will be an expectation of openness and co operation between parties from the outset, supported by pre litigation protocols on disclosure and experts. The courts will be able to give effect to their disapproval of a lack of co operation prior to litigation.
(b) The court will encourage the use of ADR at case management conferences and pre trial reviews, and will take into account whether the parties have unreasonably refused to try ADR or behaved unreasonably in the course of ADR.
(c) The duty of experts to the court will be emphasised. Single experts, instructed by the parties, will be used when practicable. Opposing experts will be encouraged to meet or communicate as early as possible to narrow the issues between them. The court will have a power to appoint an expert.
Litigation will be less complex.
(a) There will be a single set of rules applying to the High Court and the county courts. The rules will be simpler, and special rules for specific types of litigation will be reduced to a minimum.
(b) All proceedings will be commenced in the same way by a claim.
(c) The claim and defence will not be technical documents. The claim will set out the facts alleged by the claimant, the remedy the claimant seeks, the grounds on which the remedy is sought and any relevant points of law. The defence will set out the defendant's detailed response to the claim and make clear the real issues between the parties. Both 'statements of case' will have to include certificates by the parties verifying their contents so tactical allegations will no longer be possible.
(d) During the course of proceedings the court on its own initiative, or on the application of either party, will be able to dispose of individual issues or the litigation as a whole where there is no real prospect of success.
(e) Claimants will be able to start proceedings in any court. It will be the court's responsibility to direct parties or to transfer the case, if necessary, to the appropriate part of the system.
(f) Discovery will be controlled; in a minority of cases the present scale of discovery will be possible but in the majority of cases there will be a new standard test for more restricted disclosure.
(g) There will be special procedures, involving active judicial case management, to deal with multi party actions expeditiously and fairly.
(h) Instead of an irrational kaleidoscope of different ways of appealing or applying to the High Court against the decisions of other bodies, there will be a unified code.
The timescale of litigation will be shorter and more certain.
(a) All cases will progress to trial in accordance with a timetable set and monitored by the court.
(b) For fast track cases there will be fixed timetables of no more than 30 weeks.
(c) The court will apply strict sanctions to parties who do not comply with the procedures or timetables.
(d) Appeals from case management decisions will be kept to the minimum, and will be dealt with expeditiously.
(e) The court will determine the length of the trial and what is to happen at the trial.
The cost of litigation will be more affordable, more predictable, and more proportionate to the value and complexity of individual cases.
(a) There will be fixed costs for cases on the fast track.
(b) Estimates of costs for multi track cases will be published by the court or agreed by the parties and approved by the court.
(c) There will be a special 'streamlined' track for lower value or less complex multi track cases, where the procedure will be as simple as possible with appropriate budgets for costs.
(d) For classes of litigation where the procedure is uncomplicated and predictable the court will issue guideline costs with the assistance of users.
(e) There will be a new test for the taxation of costs to further the overriding objective. It will be that there should be allowed "such sum as is reasonable taking account of the interests of both parties to the taxation."
Parties of limited financial means will be able to conduct litigation on a more equal footing.
(a) Litigants who are not legally represented will be able to get more help from advice services and from the courts.
(b) Procedural judges will take account of the parties' financial circumstances in allocating cases to the fast track or to the small claims jurisdiction.
(c) Limited procedures and tight timetables on the fast track, and judicial case management on the multi track, will make it more difficult for wealthier parties to gain a tactical advantage over their opponents by additional expenditure.
(d) When deciding upon the procedure which is to be adopted the court will, if the parties' means are unequal, be entitled to make an order for a more elaborate procedure, conditional upon the other side agreeing to meet, in any event, the difference in the cost of the two possible procedures.
(e) The new approach will be supported by more effective sanctions, including orders for costs in a fixed sum which are to be paid forthwith.
There will be clear lines of judicial and administrative responsibility for the civil justice system.
(a) The Head of Civil Justice will have overall responsibility for the civil justice system in England and Wales.
(b) The Presiding Judges on each Circuit will exercise their responsibility for civil work in conjunction with the two Chancery judges who will also oversee the business and mercantile lists.
(c) A nominated Circuit judge will be responsible for the effective organisation of each civil trial centre and its satellite courts.
(d) The new administrative structure will establish a partnership between the judiciary and the Court Service.
The structure of the courts and the deployment of judges will be designed to meet the needs of litigants.
(a) 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.
(b) Smaller local courts will continue to play a vital role in providing easy access to the civil justice system. Housing claims, small claims, debt cases and cases allocated to the fast track will be dealt with there, as well as case management of the less complex multi track cases.
(c) Better ways of providing access to justice in rural areas will be maintained and developed.
(d) There will be a more straightforward system of appeals. Appeals with no real prospect of success will be eliminated at an early stage.
(e) The courts will have access to the technology needed to monitor the progress of litigation.
(f) Litigants will be able to communicate with the courts electronically and through video and telephone conferencing facilities.
(g) Trials will take place on the date assigned.
Judges will be deployed effectively so that they can manage litigation in accordance with the new rules and protocols.
(a) Judges will be given the training they need to manage cases.
(b) Judges will be encouraged to specialise in such areas as housing and medical negligence, and will be given the appropriate training to ensure that they understand the legal and technical issues fully.
(c) Cases will be dealt with by the part of the system which is most appropriate. The distinctions between the county courts and High Court and between the divisions of the High Court will be of reduced significance.
(d) Judges will have the administrative and technological support which is required for the effective management of cases.
The civil justice system will be responsive to the needs of litigants.
(a) Courts will provide advice and assistance to litigants through court based or duty advice and assistance schemes, especially in courts with substantial levels of debt and housing work.
(b) Courts will provide more information to litigants through leaflets, videos, telephone helplines and information technology.
(c) Court staff will provide information and help to litigants on how to progress their case.
(d) There will be ongoing monitoring and research on litigants' needs.
The funding of civil litigation
10. My Inquiry is concerned with the procedure of the civil courts. I have not dealt directly with the funding of litigation, but there are other developments in this area which will affect the new landscape I have just described. The most significant recent development in the funding of civil litigation is the current review of legal aid, on which there has been close co operation between my Inquiry Team and the Legal Aid Reform Team.
11. It is essential that the reforms of legal aid should take into account and support the recommendations I am making. The reforms of civil procedure which I am proposing will be more effective if:
(a) legal aid funding is available for pre litigation resolution and ADR (including the costs of an expert conducting expert adjudication of small claims and cases on the fast track);
(b) public funding is available for in court advice services, especially on housing issues;
(c) legal aid is available for solicitors and barristers providing 'unbundled' legal services to parties conducting their own cases on the fast track;
(d) the Legal Aid Board's decisions take into account the court's allocation of a case to the appropriate track, and any directions of the court as to the future management of the case; in all cases but especially in multi party actions;
(e) the legal aid reforms recognise the importance of ensuring the survival of efficient small firms of solicitors, particularly in remote areas.
12. In addition there is the availability of conditional fee agreements and the growth in legal expenses insurance. Both of these can help to make litigation more affordable, but they cannot in themselves deal with the underlying problems of excessive and unpredictable costs. Both conditional fees and insurance are, at present, available only in limited classes of cases. They will only become more generally available if costs are firmly controlled in the ways that I am proposing.
Implementation of my reforms
13. The Lord Chancellor welcomed my interim report and has made plain his commitment to reform. Having accepted the thrust of my recommendations, he has established an implementation team and embarked on a programme of phased implementation.
14. In January 1996 the Lord Chancellor appointed the Vice Chancellor, Sir Richard Scott, to take on the duties envisaged for a Head of Civil Justice. This appointment is in itself a very important step. Sir Richard will be able to take charge of implementing many of the other recommendations He will be able to provide the hands on leadership for civil litigation which it has lacked in the past. He will be able to have an input into the selection of judges to be responsible for the handling of civil work at trial centres. He will be in a position to oversee the implementation of the other recommendations.
15. The Court Service, in consultation with the judiciary, has started to put into place the supporting structure which will be needed to introduce the new system of case management by the courts. This includes identifying the appropriate number and location of trial centres on each Circuit, and setting up a new arrangement for a partnership between the judiciary and administrative staff. The Judicial Studies Board is preparing for an intensive programme of training for judges involved in case management, based on a survey which the Board wishes to conduct to identify the special interests and needs of judges.
16. Some of my other recommendations which did not need to await this final report have already been implemented. The small claims jurisdiction has been increased to £3,000, except for personal injury claims, as from 8 January l996. At the same time the test applied by district judges in considering transfer out of the small claims jurisdiction was modified, so that cases qualify for transfer if they are considered 'complex' rather then 'exceptionally complex'. The Judicial Studies Board is making arrangements to provide additional training for district judges in connection with their small claims work and has developed a protocol or best practice guide to promote the consistency of approach which I recommended. The option of paper adjudication, which I recommended, as of benefit in particular to small businesses and the self employed, is being considered by the Lord Chancellor's Department.
17. The effects of the increased jurisdiction are being monitored and research is being considered. I hope that the results of any monitoring or research will be published so that the effects of the increase in jurisdiction can be considered by all those involved, before any further increase is contemplated
18. I outlined my proposals for an enhanced role for ADR in the interim report and the past year has seen further developments, including a pilot mediation scheme at Central London County Court and plans for pilot mediation and arbitration schemes at the Patents County Court. I also understand that the Lord Chancellor is considering providing assistance with the ADR pilot scheme being conducted by Bristol Law Society and researching the effects of this. I welcome the recent publication by the Lord Chancellor's Department of a plain English guide on ADR entitled Resolving Disputes Without Going To Court, designed to make members of the public more aware of methods of resolving disputes which do not involve litigation. The new procedures I propose will emphasise the importance of ADR through the court's ability to take into account whether parties have unreasonably rejected the possibility of ADR or have behaved unreasonably in the course of ADR.
19. The interim report emphasised the importance of providing effective information, advice and assistance to all litigants and recommended that all the Civil Justice Review's recommendations in this respect should be implemented. Provision of such assistance until now has been very much a matter of local initiative and it says much for such local action that about one third of all county courts now host advice schemes. The creation of the Court Service as an agency, with its emphasis on customer service, and in particular the new management structure, now provides an opportunity to take a more strategic approach. The provision of information and advice directs people to appropriate means of resolving disputes, enables them to understand how to progress their eases and contributes to the effective disposal of court business. Just as ease management involves spending time to save time, so the provision of appropriate help to litigants will result in a better use of court and legal aid resources. It will also ensure that access to justice is a reality rather than a slogan.
Conclusion
20. In the course of the Inquiry there has been unprecedented consultation with all involved in the civil justice system. Over the last year, judges, practitioners and consumers have worked together to hammer out new ways of tackling problems and to contribute to what is proposed in this final report. I see a continuing need for such involvement in the process of implementation. Much has been done. But much more remains to be done. The continuing involvement of all those who use the civil justice system will be given coherence and leadership by the Civil Justice Council which I recommended in the interim report. Local user committees, a specialist IT sub committee and working groups developing further detail for the new fast track would all come under its aegis. The Council would continue and develop the process of co operation and creativity that the Inquiry has benefited from.
21. The civil justice system in this country urgently needs reform. The time is right for change. The public and businesses want change, and the majority of the legal profession agree. The judiciary has strongly supported my Inquiry. I have been given a unique opportunity to help achieve the change which is needed.
22. My recommendations, together with the new code of rules, form a comprehensive and coherent package for the reform of civil justice. Each contributes to and underpins the others. Their overall effectiveness could be seriously undermined by piecemeal implementation. Their implementation as a whole will ensure that all the supporting elements of the civil justice system are directed towards the fundamental reform that is required.
23. Nevertheless, there should be a degree of flexibility in the approach to implementation. All the recommendations I have made, both in the interim report and in this report, are designed to meet the objectives for the civil justice system which I set out at the beginning of this overview. My detailed recommendations are based on a thorough review of the present system, including the wide consultation I have mentioned, but the objectives are of primary importance. The individual proposals should not be too rigidly applied if it is found that there are better ways of achieving the objectives. My overriding concern is to ensure that we have a civil justice system which will meet the needs of the public in the twenty first century.