Chapter 1 Introduction
2. There are already examples of case management being developed at particular courts. In the High Court there is the management of substantial litigation, such as that involving Lloyd's, by the Commercial Court. The same is true of the Official Referees' Court. There are the procedures being adopted at county courts such as Central London, Truro and Wandsworth. The results are very encouraging. Similar developments have been taking place in Scotland, the United States, Canada, Australia and New Zealand. Experience in developing case management in other jurisdictions has indicated that not all cases require the same hands-on management but that a differential approach is needed. Research on existing systems has also shown the efficacy of timetabling. These developments show the way forward.
3. There are those who have misgivings about the need for my proposals and their ability to effect beneficial change. Concern has been expressed that my proposals for case management will undermine the adversarial nature of our civil justice system. The concerns are not justified. The responsibility of the parties and the legal profession for handling cases will remain. The legal profession will, however, be performing its traditional adversarial role in a managed environment governed by the courts and by the rules which will focus effort on the key issues rather than allowing every issue to be pursued regardless of expense and time, as at present.
4. It has also been suggested that judges are not well equipped to be managers. I do not see the active management of litigation as being outside a judge's function. It is an essential means of furthering what must be the objective of any procedural system, which is to deal with cases justly. Case management includes identifying the issues in the case; summarily disposing of some issues and deciding in which order other issues are to be resolved; fixing timetables for the parties to take particular steps in the case; and limiting disclosure and expert evidence. These are all judicial functions. They are extensions backwards in time of the role of the trial judge. It should be remembered that not all judges will be acting as procedural judges. I envisage that the function of procedural judges will usually be taken by Masters and district judges, although in more complex cases Circuit judges and High Court judges will perform the task. I see case management as an enhancement of the present role of Masters and district judges, but with clearly defined objectives. Obviously there will be a need for training for both judiciary and court staff in order to improve the necessary skills. The Judicial Studies Board recognises that a substantial training effort is needed and has already begun to consider what is required. I am conscious that some procedural judges may feel that their decisions, for example on limiting evidence or the order in which issues are to be dealt with, may be overturned by the trial judge or on appeal. In the future, I hope that the team system will make for a greater partnership between all the judges in every court and ensure consistency of approach to the handling of cases and the development of case management.
5. Another concern which has been expressed is that early consideration of cases, reading the papers in the case as well as conducting the conferences and pre-trial reviews, will add significantly to the burdens of already hard-pressed Masters and district judges. It has also been suggested that case management will mean an increase in the number of interlocutory hearings, when the objectives of reducing costs and delay would be better achieved by reducing the number of such hearings. Moreover, given that the majority of cases do not reach trial, it has been argued that time spent on management early in a case will be wasted time.
6. The concerns about workload and new ways of working are understandable. I accept that any new regime will initially impose additional burdens on those who have to operate it. But the concerns do not take sufficient account of the expectations of active case management by the court. The aim of case management conferences in multi-track cases is that fewer cases should need to come to a final trial, by encouraging the parties to settle their dispute or to resolve it outside the court system altogether, and that for those cases which do require resolution by the court the issues should be identified at an early stage so that as many of them as possible can be agreed or decided before the trial. The pre-trial review should then take further steps to ensure that the trial will be shorter and less expensive. Case management hearings will replace rather than add to the present interlocutory hearings. They should be seen as using time in order to save more time.
7. This last point is an aspect of the wider concern that what I am proposing will require far more staff and other resources. Both the Bar Council and the Law Society and many others have drawn attention to this. It is said that if the management of a case is now to be handled by the court instead of by the parties' lawyers, additional judicial and administrative capacity will be needed. There are several ways in which these concerns can be addressed.
(a) Case management will be proportionate. There will be hands-on judicial intervention only in cases which will require and repay it. Basic management, with a fixed timetable and standard procedure, will be used wherever possible, on the multi-track as well as the fast track.
(b) Case management conferences will involve a more focused and directed use of time which would otherwise be spent on interlocutory hearings. The number of interlocutory applications will in any event be reduced: the move from formal pleadings to fact-based statements of case, for example, will make applications about further and better particulars less necessary.
(c) Priorities for resources must be established and resources redeployed where necessary. Generally, this will mean making realistic provision for reading time for judges and more clerical assistance to enable judges to spend more time on judicial functions. It may involve the use of law clerks in heavy cases, which I discuss in chapter 8. Under the new system some tasks, such as taxation of what will become fast track cases, will no longer be needed. Increased use of information technology will provide substantial support for case management by offering easier access to information on the progress of cases and by providing tools to support the management of individual cases. Its use will also mean that court staff can be freed from other tasks to provide support to judges on case management. (I refer here to the important proposals on IT in chapter 21.)
(d) Two other significant aims of my recommendations need to be borne in mind: that of encouraging the resolution of disputes before they come to litigation, for example by greater use of pre-litigation disclosure and of ADR, and that of encouraging settlement, for example by introducing plaintiffs' offers to settle, and by disposing of issues so as to narrow the dispute. All these are intended to divert cases from the court system or to ensure that those cases which do go through the court system are disposed of as rapidly as possible. I share the view, expressed in the Commercial Court Practice Statement of 10 December 1993, that although the primary role of the court is as a forum for deciding cases it is right that the court should encourage the parties to consider the use of ADR as a means to resolve their disputes. I believe that the same is true of helping the parties to settle a case.
8. While I have always accepted that some additional resources will be necessary, especially for training and technology, I do believe that when all these considerations are borne in mind the additional resources required should be well within the bounds of what is possible.
9. It has been suggested that it is simplistic to attribute the problems of the system to one single cause, the uncontrolled nature of the litigation process, and that there is no research to back up this assertion. My approach has been to examine the many symptoms of that single underlying cause, and my proposals are designed to tackle each of those symptoms as well as to provide an overall and coherent framework which addresses the underlying cause itself. The final survey of Supreme Court Taxing Office taxed bills by Professor Genn, summarised in Annex 3, provides detailed information on the wide range of factors which contribute to the problem and the need to provide the system with procedural levers to tackle each of them.
10. It is argued by a minority that cost and delay in civil litigation are not excessive and no remedial action is required. The SCTO survey in fact reveals, in relation to taxed cases, a reduction in overall delay and a holding steady of cost in all case types except medical negligence where cost has been increasing by seven per cent a year. The perception of clients remains, however, that cost is excessive and in many cases disproportionate and that the overall time taken is still too long and when the facts are examined it is clear this perception is far from being without foundation.
11. The survey findings on proportionate cost bear this out. They indicate that average costs among the lowest value claims consistently represent more than 100 per cent of claim value and in cases between £12,500 and £25,000 average costs range from 40 per cent to 95 per cent of claim value. To put it another way, the present system provides higher benefits to lawyers than to their clients. It is only when the claim value is over £50,000 that the average combined costs of the parties are likely to represent less than the claim. These difficulties will be alleviated by my proposals for case management.
12. It has been argued that costs are only disproportionate if they are in excess of what the parties are prepared to pay and that this is not the case in relation to personal injury and other cases where the costs are predominantly met by insurers. I do not accept this argument for reasons which I explained in the interim report. I deal again in detail in chapter 2
of this report with why I do not accept this argument.
13. My proposals tackle not only the cost but also the time taken by cases to reach a conclusion. Although the SCTO survey showed that most cases had an overall duration of 20 to 35 months, personal injury and medical negligence cases lasted a median period of 54 and 61 months. Also of concern is the indication that this period is longer in personal injury cases
if the case is simple rather than complex and if it is legally aided. My recommendations in relation to pre-issue disclosure and pre-litigation protocols are designed to achieve an improvement here. There are particular problems in relation to medical negligence cases; that is why I have devoted special attention to this area.
14. The survey found that the cases which lasted longest were the 54 per cent which settled, taking between 42 and 48 months, while those ending after judgment, a quarter of the sample, took on average 25 months. The categories of cases with the highest proportion of settlements are those with the longest duration which are medical negligence, personal injury and professional negligence. My recommendations in relation to timetabling of all cases, to plaintiffs' offers and the requirement on the court to consider and assist with settlement, are designed to improve matters here.
15. In conclusion, I remain convinced that there is a grave need to move to a managed system of dispute resolution and that my proposals accurately address that need.
16. Essential elements of my proposals for case management include:
(a) allocating each case to the track and court at which it can be dealt with most appropriately;
(b) encouraging and assisting the parties to settle cases or, at least, to agree on particular issues;
(c) encouraging the use of ADR;
(d) identifying at an early stage the key issues which need full trial;
(e) summarily disposing of weak cases and hopeless issues;
(f) achieving transparency and control of costs;
(g) increasing the client's knowledge of what the progress and costs of the case will involve;
(h) fixing and enforcing strict timetables for procedural steps leading to trial and for the trial itself.
17. The fast track will provide these on a standardised basis for straightforward cases under £10,000. My general approach, the detailed procedure and the costs regime are set out in chapters 2, 3 and 4. Chapter 5 sets out my detailed proposals for cases on the multi-track and chapter 6 in this section deals with sanctions.
1. In my interim report I recommended the establishment of a new fast track for straightforward cases not exceeding £10,000 in value. I recommended a strictly limited procedure designed to take cases to trial within a short but reasonable timescale with fixed costs that would be known in advance so that litigants could estimate their maximum liability for costs even if unsuccessful. I envisaged that the greater certainty of the procedure and the costs would encourage the development of legal expenses insurance because it would provide certainty to solicitors and to insurance companies and would enable the Legal Aid Board and other bulk purchasers of legal services to make better use of their resources.
2. The fast track was welcomed by the Lord Chancellor. He has asked me to develop detailed procedures and a costs structure for the fast track. This I hope has been achieved thanks to the extremely valuable help of the Fast Track Working Group.
3. Other jurisdictions, in particular the United States, Canada and Australia, have introduced limited procedures and tracking for straightforward cases. I have examined some of these in operation and been sent valuable material on others. The Inquiry's academic consultant has conducted a survey. Experience elsewhere has been generally positive although some systems are still at an early stage. My approach has many common features with those but is more radical in that it involves a fixed costs regime.
The Fast Track Consultation Response to consultation The National Consumer Council (NCC) commented:
7. The Law Society and the Bar have been extremely constructive in their contributions. They have submitted a number of very helpful papers to the Inquiry. Their response and that from the profession and consumers, both individuals and businesses, has been overwhelmingly positive. In addition, the Department of Trade and Industry, which has circulated my interim report through its consultative bodies and information channels, has reported overwhelming enthusiasm among business on the proposals
for the fast track and on case management generally.
8. The Law Centres Federation, while it did not accept that any link existed between the complexity of a case and its value, did accept that there was a relationship between the costs of the case and the benefit to the client. It commented:
9. The Law Society in its response to my interim report supported my outline proposals for the fast track in principle but said:
10. The Society also suggests that "a number of factors, not only monetary value, need to be taken into account when deciding the appropriate track for an action."
11. There are nonetheless a minority who consider that the whole concept of the fast track is wrong in principle and a greater number who, while supporting the proposals in principle, are concerned about the detail. The issues of principle which were raised relate first to the scope of the fast track and the criteria by which cases are included or excluded and secondly to the concept of proportionality.
Scope 13. The new procedures should enable defended cases up to £10,000 to be progressed fairly within the fast track. Some respondents to the issues paper, notably the Bar, have suggested that all cases should be allocated to the fast track by a given case type, rather than as a result of a presumption based on monetary value. As against this, many respondents have pointed out that all types of cases have the potential to be simple or complex. It is preferable to establish criteria which can be applied to all types of cases and which will enable parties to identify, and the court to decide, whether or not a case is suitable for handling within the 'no frills' procedure of the fast track.
14. I recognise that not all cases under £10,000 will be suitable for the fast track. The criteria for removal from the fast track must be such as can be clearly identified by litigants, advisers and the courts. It is in the interests of all that there should be certainty; I do not wish to devise criteria which will lead to endless applications to transfer.
15. I have carefully considered the responses to the consultation and the conclusions of the working group. I recommend that a case should not be included in the fast track if:
(a) it raises issues of public importance; or
(b) it is a test case; or
(c) oral evidence from experts is necessary; or
(d) it will require lengthy legal argument or significant oral evidence which cannot be accommodated within the fast track hearing time; or
(e) it will involve substantial documentary evidence.
16. There are three categories of cases which will normally be excluded because of the criteria outlined above: medical negligence cases, jury trials and cases of deceit. In those cases, the presumption should be that the case will be dealt with on the multi-track. In other types of cases, such as personal injury and other classes of professional negligence, there will be no presumption. Some individual cases will meet the criteria for transfer into the multi-track but others will not. The decision will have to be made by the district judge in the individual case, based on the information in the claim and defence and taking account of the criteria outlined above and the wishes of the parties. It has been argued that all professional negligence cases should be excluded from the fast track. Negligence claims will include claims against builders and garages, as well as claims against the 'learned' professions. There is no reason in principle to treat them differently and no clear dividing line; some of the former may be complex while some of the latter may be straightforward. Both consumers and small businesses value the improved access that the fast track will provide. I do not wish to restrict that access by the exclusion of a particular category of proceedings where their wish for access is well recorded.
Party choice of procedure 18. There are two other compelling reasons for designing the fast track in such a way that the majority of cases under £10,000 will be dealt with under its procedures. The first is the certainty that is provided both to the litigant and to the litigant's legal advisers. This will enable advice to be given to potential litigants on the cost benefit of pursuing any case under the procedures. The second is that without the prima facie assumption that most cases would be dealt with under the fast track, there would be numerous disputes as to what the appropriate track would be and this would itself generate expense and involve a considerable drain on judicial resources. The certainty provided by the fast track will be particularly helpful in the merits test for legal aid which looks at the likely cost benefit of the case.
ProportionalitySection II
Case Management
1. In chapters 6 and 8 of my interim report I described the introduction of judicial case management as crucial to the changes which are necessary in our civil justice system. Ultimate responsibility for the control of litigation must move from the litigants and their legal advisers to the court. The reaction to this key message in my interim report has been extremely supportive.
4. The working group included practitioners nominated both by the
Working Group professional bodies and the Advice Services Alliance (which covers a wide range of advice centres and law centres). The practitioners on the working group (listed in Annex 1) are representative of those who litigate in the civil courts and have experience of a wide range of cases, including personal injury, building and construction, disputes over goods and services, housing disrepair and other housing cases.
5. An issues paper circulated in January 1996 consulted on proposals
for the fast track procedures. I and members of the Inquiry Team have discussed the proposals with interested organisations and many individuals. The Inquiry Team has had detailed discussions with representatives of small businesses and the issues paper has been circulated, thanks to the Department of Trade and Industry Small Business Unit, to many of the leading business representatives via bodies such as the Institute of Directors and the Alliance of Independent Retailers and Businesses.
6. The Consumers' Association recommended that the fast track procedure should apply to cases up to £15,000. They said:
"This would enable more, relatively straightforward disputes relating to, for instance, building works (home extensions and improvements), to be covered by the procedure. We are aware of many consumer complaints that fall into this category but where the risk of liability for disproportionately high legal costs makes litigation an impractical option for all but the wealthy and/or brave."
"Broadly the NCC feels that a fast track could provide lower cost access to justice for fairly straightforward cases of moderate value. In order to ensure that this more rough and ready justice is in fact just, the new proposals need to conform to the basic principles. These are fairness and accessibility, responsiveness to objectives, equality and balance; supported by active case management, adequate resourcing, information and consultation and a non-adversarial approach."
"It is clear that a privately paying client would not consider it reasonable that the total cost of the claim should be more than the value of the claim itself in most cases. Given the 'person of moderate means' test applied by the Legal Aid Board then the position is likely to be very much the same for legally aided clients."
"The Society has continued to support the principle of the fast track provided the procedures are not so curtailed as to discourage settlements and lead to more trials and/or lead to rough justice. The Society also supports proportionality between what is at issue between the parties and the procedures and costs."
12. The fast track is intended to cover the majority of defended actions within the monetary band £3,000 - £10,000. All personal injury cases up to £10,000 will be included except where the claimant is a litigant in person and opts for a claim below £3,000 to be dealt with under the small claims procedure. The fast track will also deal with non-monetary claims such as injunctions, declarations and orders for specific performance which are not suitable for the small claims procedure and do not require to be dealt with on the multi-track. Since the fast track is for defended actions, debt actions, fixed date possession and return of goods actions will not be affected by these proposals unless a substantive defence is filed.
17. It has been suggested, by the Bar amongst others, that the decision whether to opt for the limited procedures of the fast track should be a matter for the parties themselves. I am aware that the introduction of a fast track in New South Wales was achieved on this basis. Parties and their representatives had a choice between a fast track and the standard or slow track, and legal representatives were required to inform their clients if they were pursuing the case in the slow track and of their reasons. This is one answer. However, potential litigants, both individuals and small businesses, have indicated to me that they support the concept of the fast track and I think there should be a prima facie assumption that the fast track will be used for all cases under £10,000, unless they meet one or more of the criteria for transfer out. To preserve access to justice for all users of the system it is necessary to ensure that individual users do not use more of the system's resources than their case requires. This means that the court must consider the effect of their choice on other users of the system.
19. My proposals for proportionality for the system of civil justice overall are underpinned by Rule 1 of the new rules which requires the court to deal with cases in ways proportionate to the amount involved, the importance or complexity of the issues, and the parties' financial position. Proportionality underlies the whole concept of the fast track.
20. The argument against proportionality was put by the Association of Personal Injury Lawyers (APIL) in the first part of my Inquiry. The Association has made a number of points to me, and out of respect for its arguments I consider these in detail in what follows. In the first part of the Inquiry, APIL argued that since the costs of personal injury cases were almost invariably recovered from insurers there was no need to introduce the concept of proportionality in these cases and that to do so would have a disastrous impact on lawyers' ability to achieve proper compensation for their clients. APIL has further argued that it would be impracticable to expect its members to work within a range of costs that would be proportionate to the compensation that is awarded. They consider that if they are required substantially to reduce the cost of litigating their cases, and hence their fees, it will result in experienced personal injury solicitors giving up the work.
21. I considered these arguments in stage one of my Inquiry and in my interim report I commented as follows:
"If the profession is not willing or able to meet this challenge, then it should not imagine that the status quo can be retained. More fundamental measures, possibly involving the removal of at least moderate-sized injury claims from the litigation system, would have to be envisaged." (Interim report, chapter 7, paragraphs 24 - 25)
22. APIL has maintained its stance, basing it on two rather different considerations. First it argues that it is impossible to investigate and to prove personal injury claims in a way that is proportionate to the compensation eventually awarded because insurers are prepared to throw unlimited sums of money into the defence of quite small claims. Secondly, it argues that disproportionate cost is immaterial since the majority of personal injury claims succeed and the costs of litigating the action are in any event reimbursed to the claimant by the defendant. I accept that the first argument will have weight in a minority of cases; an example is where there are pioneering types of action such as vibration white finger. Actions involving new areas of industrial disease or other cases which are effectively test cases should not come within the fast track. However, in the majority of cases, the insurers will have little scope to deploy excessive resources even if they want to do so, which I doubt will happen, because of the limited procedure. In those cases where a defendant unexpectedly pursues a small action at great expense to the claimant, the judge will provide the protection needed by exercising his discretion to disapply the limit on recoverable costs.
23. The second point goes to the root of the Inquiry and is not to be accepted. A system which usually pays those who litigate cases as much as, and sometimes more than, the victims receive in compensation simply fails to command public confidence. One of the objectives of the Inquiry is to restructure the work that solicitors have to do so that there will be a greater degree of proportionality between the amount of a claim and the cost of pursuing it. As the London Solicitors' Litigation Association pointed out, the only way to limit the costs of a case is to limit the amount of work that the solicitor has to do on the case. That is what the fast track will achieve.
24. Even where individual litigants receive back the full cost of achieving their compensation, that cost must be borne in the first place by the insurers, in the second place by the insured and in the third place by society generally. I accept that the cost of litigating and awarding compensation has a regulatory role in influencing awards of compensation and the costs associated with them may well play a part in deterring employers from perpetuating unsafe practices. But that is also likely to be achieved by proportionate costs, and in any event is more a matter for the insurance industry to achieve through appropriate loading of premiums than through accepting excessive litigation costs. In addition, when insurers consider settling cases they tend to look at the total cost of the claim (the damages payable plus costs). Excessive cost tends to reduce the sum available for damages. Finally, the pattern of high spending on personal injury contaminates other areas of litigation where the costs are less likely to be borne by insurers.
25. More recently, in the final stages of the Inquiry, APIL has argued that the growing use of conditional fee agreements, since their introduction in August 1995, has provided access to justice in personal injury cases for those who previously did not litigate through fear of costs, and that there is no need for personal injury cases to be subject to the fast track since the desired increase in access to justice has been achieved. APIL contends that conditional fee agreements provide claimants with complete certainty as to costs, through the provision of insurance after the event since, if the client loses, the insurance pays all the defendant's costs and the claimant's solicitor must carry his own costs. If the claimant wins, as APIL suggests will happen in 95 per cent of personal injury cases, he/she will recover in the region of 85 per cent of his/her costs from the defendant. Successful claimants pay their own solicitor a success fee, which APIL suggests would normally be between 20 - 30 per cent of solicitor and own client costs. The Law Society recommends that, in any event, it should be no more than 25 per cent of the damages recovered.
26. APIL's concern is that fixed recoverable costs will diminish the amount of costs recovered by claimants on their behalf from defendants because the cost of litigating an individual case may be in excess of the fixed recoverable costs if those are not fixed at a realistic level. If that were to happen, clients would have to meet the extra out of their damages, in addition to the success fee, or solicitors would be pressured to do the work for less. APIL has said that in those circumstances, either clients would cease to use conditional fee agreements or experienced personal injury lawyers would no longer be able to undertake the work. Either outcome would reduce access to justice.
27. The whole concept of the fast track is intended to increase access to justice by removing the uncertainty over excessive cost which deters people from litigating. Conditional fee agreements combined with after the event insurance contribute to the same objective. The two must work together to improve access rather than reduce it. It will be clear, however, from the preceding discussion, that conditional fees do not answer the case for a more economical level of costs. Indeed, they could, taken by themselves, shore up an uneconomic level of costs. An acceptable level of costs can best be achieved by ensuring that the costs regime provides a realistic and fair reward for litigating such cases and that solicitors generally accept this regime of fixed limited costs for solicitor and own client costs. The working group has recommended a structure designed to achieve that, which I outline in chapter 4.
28. The Fast Track Working Group and the work on pre-action protocols have demonstrated the considerable progress that can be made by working groups of judges and practitioners representing both claimants and defendants in devising procedures appropriate to cases under £10,000. I recommend that such groups should carry forward the work on the costs regime on a similar basis.
29. There is a final point to which I attach great importance. It is vital that solicitors should feel able to welcome the fast track system as a new facility which they can commend to their clients as providing access to justice with certainty and economy. Constant pressure to take cases out of the fast track will undermine certainty and increase costs.
Equality of resources
30. Many of those responding to the fast track issues paper were concerned that it might reduce equality between the litigants. That is the opposite of what should be the position. Equality is furthered by setting out the requirements in terms of activity and timetable for both parties at the very start of the case. There will be very limited scope for any party to undertake extra work and no reward for doing so. The timetable will be sufficient for parties to undertake the work that is needed but not so generous as to encourage elaboration. While the fixed costs will be set at a level sufficient to reward the winning party for this work, the resultant procedure will mean that there is little potential for a powerful opponent to drive up costs in a way which is intimidating to the weaker litigant, as can happen in the current system. Sanctions will be more effective, whether they are cost related or inhibit a party's ability to present material in the case. It is particularly important on the fast track for the court to provide protection, on both a preventative and a curative basis, against oppressive or unreasonable behaviour. My proposals for dealing with such behaviour are set out in detail in chapter 6.
Court control
31. My proposal for a court-managed system which sets a timetable for steps to be taken to progress a case to trial in the fast track is a significant change from the current party-driven litigation. It builds on the experience of timetabling at Liverpool and Central London County Courts. On consultation, the overwhelming response to timetabling was positive. The limited period given to parties by fixed dates for trial was seen as beneficial in concentrating attention, ensuring effective preparation and, most significantly, in reducing cost. Litigants in person, in particular, find detailed timetables helpful but complain that at present they are routinely ignored by practitioners, with impunity. That will no longer be possible under my proposals.
32. It is clear that at present party-driven litigation is still taking too long to reach a conclusion. It is unreasonable in my view to expect clients to wait on average two to three years for the resolution of a dispute. It is important for cases to proceed as quickly as is consistent with the interests of justice. The longer the period from the time when the cause of action arose until trial the more difficult it is for clients and witnesses to remember the events clearly. It is also likely that the eventual award will be of less significance to the successful party so long after the event, notwithstanding the possibility of awarding interest on the claim. For this reason it is important that lower value cases, which will be dealt with on the fast track, are resolved as soon as possible. The way to achieve that is for the court to determine an appropriate timetable to bring cases to final disposition.
The judiciary and court resources
33. Particularly in the early stages the fast track will impose a considerable burden on the judiciary, especially the district judges. They will have to consider cases at the outset to determine the allocation to the proper track and will have to deal with applications to remove cases from the track, to vary the timetables, to require opponents to produce documents or experts' reports or to restrain the oppressive activity of opponents. It will be essential for there to be consistency in decision making throughout the country, at each local centre and at every level of the judiciary. This will require judicial training and guidance to ensure that there is consistency of approach both at first instance and appeal. District judges and Circuit judges need to feel that they are operating within a system which will be supported by High Court judges and the Court of Appeal. It is particularly crucial that time is allocated to allow judges to give proper consideration to the papers when the defence is filed, to determine the appropriate track and give the necessary directions for the future conduct of the case. It is also important, for the purposes of trial management, that judges receive the necessary training and that time is allocated to pre-read the papers. Judges will require administrative support from the Court Service to ensure that the new demands of the fast track can be met. Listing systems must enable judges to deal with applications for relief from sanctions within days rather than weeks.
34. If difficulties arise over meeting timetables, these need to be resolved quickly. Whilst the majority of these applications may be dealt with on paper, some may require a hearing. It will also be important that appointments to deal with failure to return the listing questionnaire are given promptly. Appeals, particularly interlocutory appeals, will also need to be disposed of expeditiously and effectively. I deal with appeals generally in chapter 14.
35. I recognise that this presents a considerable challenge, particularly to the Court Service, but I am firmly of the view that listing arrangements need to be more responsive to the needs of litigants. The practical ways in which this will be achieved will need to be worked out locally but experience in many areas, particularly with the Central London Common Listing System, has demonstrated that, with a degree of creativity and ingenuity, cases can usually be heard on the day for which they are listed. The same ingenuity and creativity will now be required throughout the whole system.
36. Cases allocated to the fast track will generally be tried by district judges unless it is more practicable or appropriate for the case to be heard by a Circuit judge. I recommended in my interim report that fast track cases should be heard at local county courts convenient to the parties. I still believe that this should be an option but recognise there will be circumstances in which it is more advantageous for the case to be heard at a civil trial centre. For example, it may enable parties to have an earlier hearing date or it may be more convenient bearing in mind public transport facilities. It is, however, important that there should be a central listing system within each local group of courts to ensure the most effective use of court and judicial resources and provide the listing flexibility needed to deal with cases expeditiously.
37. I outline in more detail in chapter 21 the role which information technology might play in implementing my proposals generally and judicial case management in particular. It is important that systems are introduced to support my proposals for the fast track. In particular, both the judiciary and the courts must be in a position to monitor the progress of individual cases to trial as efficiently as possible. Systems must also be introduced to support the administrative process, particularly that relating to listing. Systems of monitoring which depend solely on papers are clearly inefficient and time consuming. I am aware that the Court Service already has a programme for developing information technology systems in the county courts, known as LOCCS (Local County Court System). The first module of LOCCS, called 'Caseman', will provide courts with a database for court details and will, in the first instance, enable courts to process cases more efficiently and effectively without complete reliance on paper-based systems. It is expected that both 'Caseman' and further modules under the LOCCS programme can be developed to support my proposals for the fast track and case management generally. I understand that 'Caseman' will be available to the largest courts by March 1997 and to all courts by the end of 1998.
Implementation
38. A significant number of the responses to the fast track issues paper have urged that there should be piloting of the new fast track procedures and, in particular, of the costs regime, before the fast track is introduced overall. The fast track depends, as do all the changes which I am recommending, on a change of culture throughout the system which will be supported by the new rules which I am drafting. It will affect judges and court staff as well as the profession. The new system will depend very much on good and clear forms, notes for guidance and practice guides, changes in the listing practices, and appropriate information technology in both courts and solicitors' offices to ensure that the requirements of the timetable are properly diarised.
39. The need for a change in culture will only be achieved by implementing my proposals for the fast track as a whole. It would be difficult to secure such a change if, as has been argued, the procedures were implemented without the costs regime. There would be a real danger that it might replicate, within the fast track, the disproportionate costs that already exist within the current methods of litigation. However, there are some aspects of the procedure where I believe it would be beneficial to consider piloting. Listing practices will need to be reviewed to meet the needs of the fast track and to meet the considerable criticism voiced in relation to current practices. I am aware that the Court Service already has this in hand. New listing systems will take time to develop and it may be helpful for there to be a degree of experimentation to determine the best approach for different areas and different sized courts.
40. Implementation is of course a matter for the Lord Chancellor to consider. It will be for him to decide on the scale and the timetable of preparation if he accepts my proposals for the fast track. For my own part, I would merely suggest the need for a sensible timetable for implementation so that there can be adequate time to convert and train all of those involved; the judiciary, court staff and lawyers, and for practitioners and the Court Service to devise and put in place the structural arrangements, both in terms of staff and information technology, that will enable the new fast track to work effectively.