The aim of this paper is to present further findings on the effects of the Civil Justice Reforms which were introduced in April 1999, implementing many of the recommendations in Lord Woolf's final report on Access to Justice.
Early findings based upon evidence obtained over the first two years were presented in the paper 'Emerging Findings' published in March 2001. This paper builds on that evidence and includes some additional information.
In general, the findings that were included in the previous paper have been confirmed.
Overall there has been a drop in the number of claims issued, in particular in the types of claim most affected by the new Civil Procedure Rules introduced in April 1999.
Evidence suggests that pre-action protocols are working well to promote settlement and a culture of openness and co-operation.
Part 36 has been welcomed by all interested groups as a means of resolving claims more quickly: claims which settle without court proceedings and those where proceedings are issued.
There is evidence to show that settlements at the door of the court are now fewer and that settlements before the hearing day have increased.
After a substantial rise in the first year following the introduction of the Civil Procedure Rules, there has been a levelling off in the number of cases in which Alternative Dispute Resolution is used.
The use of single joint experts appears to have worked well. It is likely that their use has contributed to a less adversarial culture and helped achieve earlier settlements.
Case Management Conferences are a key factor in making litigation less complex, and appear to have been a success.
The time between issue and hearing for those cases that go to trial has fallen. The time between issue and hearing for small claims has risen since the introduction of the Civil Procedure Rules but may now be falling.
The number of appeals in the course of proceedings appears to have fallen sharply.
It is still too early to provide a definitive view on costs. The picture remains relatively unclear with statistics difficult to obtain and conflicting anecdotal evidence. Where there is evidence of increased costs, the causes are difficult to isolate.
The views of litigants in person are difficult to obtain as they tend to use the system only once. Whilst research is currently being undertaken to assess their views, anecdotally it appears that courts are providing the assistance required. Court Service User surveys have returned good results.
2.1 In section 1.9 of Access to Justice Final Report 1996, Lord Woolf described the new landscape of civil litigation as having ten features. 'Emerging Findings' looked at the first six of these features and used some aspects of these as the criteria for measuring the success of the procedural reforms. In this paper we have continued with that method and have included information on some of the work that has been undertaken in the other four areas as well. The ten features are:
Litigation will be avoided wherever possible.
Litigation will be less adversarial and more co-operative.
Litigation will be less complex.
The timescale of litigation will be shorter and more certain.
The cost of litigation will be more affordable, more predictable, and more proportionate to the value and complexity of individual cases.
Parties of limited financial means will be able to conduct litigation on a more equal footing.
There will be clear lines of judicial and administrative responsibility for the civil justice system.
The structure of the courts and the deployment of judges will be designed to meet the needs of litigants.
Judges will be deployed effectively so that they can manage litigation in accordance with the new rules and protocols.
The civil justice system will be responsive to the needs of litigants.
2.2 The overall view reported in 'Emerging Findings' was that, with a few exceptions, the reforms were working well. There were specific areas singled out for praise in various surveys, such as the change in culture and a reduction in litigation. Although there was criticism from some quarters about litigation becoming slower and more costly, that was a minority view. The evidence we have included in this report indicates that time from issue to trial has continued to decrease, and there is mixed evidence on costs. In general, views remain positive about the overall thrust of the reforms.
2.3 The Law Society Woolf Network was established in April 1999 when the first tranche of the Civil Procedure Rules came into force. It is made up of a group of about 130 solicitors who originally gave a commitment to answer twice yearly questionnaires on how the reforms are working in practice. This has since been reduced to once a year.
2.4 In the 3rd survey, published in February 2001, the reforms received a very positive overall response: 80% of the respondents felt the reforms were an improvement on the previous system with comments such as: "the reforms increased settlement and the spirit of co-operation", "the reforms make the process quicker and less adversarial."
2.5 In the 4th survey, published in February 2002, respondents were asked about their overall impressions of the reforms this stage: 25% said that the reforms were working well and another 69% said they were working well with some reservations. Only 6% of respondents said that the reforms were not working well. 84% of respondents thought that the new procedures were quicker and 70% felt they were more efficient, but a large majority of 81% did not agree that the new procedures were cheaper for their clients.
2.6 Commenting on the results of the 4th survey, Carolyn Kirby, then Law Society Vice-President, said: "There is little doubt that the new Woolf reforms have improved the civil justice system already and achieved tangible successes. However for clients and court users really to feel the benefit the system must be properly resourced and we must not allow the pre-action protocols ... to be undermined by lack of enforcement. There must also be further guidelines about the assessment of costs to ensure greater consistency."
2.7 Despite some concerns, there is a widely held view that there has been a change of culture and there remains a willingness among all those interested in civil justice to work in partnership in the continuing programme of reform. District Judge Michael Walker, Secretary of the Association of District Judges, remarked "One of the real surprises has been the way in which LCD, the Court Service and the Judiciary have together striven to work through problems as they have arisen, understanding the concerns of each other and seeking to find the most appropriate outcome, in a spirit of co-operation that echoes the Overriding Objective."
This section looks at the fall in claims, the effects of pre-action protocols and Part 36 offers.
3.1 Overall there has been a drop in the number of claims issued, in particular in the types of claim most affected by the new Civil Procedure Rules introduced in April 1999.
3.2 To test whether litigation is being avoided we have looked at the numbers of claims issued. Data from the Court Service up to December 2001 in Figure 1 shows a fall in the total number of claims issued in the county courts.
3.3 Figure 1 shows that there was a peak early in 1999 and then a large drop in claims issued immediately after the introduction of the Civil Procedure Rules. The trend that was identified in our earlier report 'Emerging Findings' is seen to be continuing in 2001 showing a gradual decline in claims being issued in county courts. Although month by month the figures vary this overall downward trend has now been stable for 3 years since April 1999 and would appear to be well established.
3.4 The amendment to the High Court and County Courts Jurisdiction Order which came into force on April 26 1999, [Endnote 1] provided that proceedings may not be started in the High Court unless the value of the claim is more than £15,000. The intention was to ensure that cases are dealt with by the appropriate judicial bench. So a fall in the number of claims issued in the Queens Bench Division of the High Court was expected.
3.5 Figure 2 shows a similar peak before the introduction of the Civil Procedure Rules and a significant fall after that date. The number of claims issued in Queen's Bench continues to fall. Figure 2 shows that although claims issued fluctuated in the first year of the new system, since March 2000 they have remained at approximately 2000 per month. However the total number of claims issued in 2001 was 21,613, a significant reduction of 19.6% from the total of 26,876 in 2000.
3.6 It should be noted that the fall in issue of claims is more marked in district registries which experienced a 22.5% decrease in 2001 compared to the 8.5 % decrease in claims issued in the Royal Courts of Justice.
3.7 Figure 3 combines the data from the previous two figures to confirm that the overall number of claims fell to a new level after April 1999.
3.8 To test whether this fall can be ascribed, at least in part, to the civil justice reforms we have compared different types of claim in the county courts.
3.9 Figure 4 shows the pattern of issue in the county courts for Part 7 claims in contract and tort such as debt, personal injury and other forms of negligence, for which new procedures were introduced by the Civil Procedure Rules in April 1999.
3.10 There was an initial large drop in issue after April 1999 followed by fluctuating monthly issue at a new lower level which now shows a gradually declining trend. The average monthly issue of this type of claim during the two year period from May 1997 to April 1999 was about 163,500. Following the introduction of the Woolf reforms the average monthly issue for the two year period May 1999 to April 2001 fell to about 131,000 - a reduction of about 20%.
3.11 Figure 5 shows the pattern of issue of claims in the county courts for possession of land and recovery of goods. This shows a similar large drop immediately after April 1999 followed by a recovery to a similar pattern of issue to the pre-Woolf monthly figures with a slightly decreasing trend. The average monthly issue of this type of claim during the two year period May 1997 to April 1999 was about 23,700. Following the introduction of the Woolf reforms the average monthly issue for the two year period May 1999 to April 2001 was about 23,500 - a reduction of less than 1%.
3.12 New procedures for these types of claim were only introduced as part of the second phase of the reforms on 15 October 2001. The comparison between the two sets of figures shows a significant drop in the case types included in the first phase of the reforms. This may be evidence that the reforms have had a direct effect on the volume of claims issued.
3.13 Evidence suggests that pre-action protocols are working well to promote settlement and a culture of openness and co-operation.
3.14 While there has always been contact between the parties before legal proceedings are started, Lord Woolf sought to formalise and improve this process by introducing pre-action protocols to encourage settlement without recourse to the courts where possible, and to narrow the issues in dispute in cases which do go to court.
3.15 A claimant must write to the prospective defendant informing him of the claim. Both parties are then expected to begin following the pre-action protocol. Claims should not be issued until at least three months after the initial letter of claim.
3.16 Pre-action protocols in the areas of clinical negligence and personal injury cases came into force on 26 April 1999 in conjunction with the first tranche of the Civil Procedure Rules. Protocols for Construction and Engineering Disputes and Defamation followed on 2 October 2000. A further protocol on Professional Negligence came into force on 16 July 2001 followed by a protocol for Judicial Review cases on 4 March 2002. The Practice Direction on protocols requires parties to comply with the general spirit of the protocols whatever the subject of the claim.
3.17 The Clinical Disputes Forum conducted a survey of over 100 of users of the Clinical Negligence protocol and reported the findings in September 2001. These are very positive and indicate that the main objectives of the protocol are being met:
3.18 In an article published in Legal Action in October 2001 [Endnote 2], Suzanne Burn referred to this survey. She wrote that the responses: 'indicated particularly that defendants are carrying out better and earlier investigations, there is more co-operative behaviour, the protocol provides better opportunities for pre-action settlement, and the statements of case are more focused when litigation is necessary.'
3.19 To assess pre-action behaviour and the effect of the protocols, the Law Society and Civil Justice Council jointly commissioned research by the Institute of Advanced Legal Studies and the University of Westminster. The final report was published on 25 April 2002 under the title 'More Civil Justice? The impact of the Woolf reforms on pre-action behaviour'.
3.20 The study was conducted during the period January to September 2001 and focused on the way that representatives behave before they litigate and, in particular, the effect the reforms have had on the settlement of cases and inter-party bargaining. It looked at three specific areas of dispute: personal injury, clinical negligence and housing disrepair. The study assesses the effect of the personal injury and clinical negligence pre-action protocols (both introduced in April 1999) in comparison with the effect of the civil reforms on housing cases, where no specific pre-action protocol is currently in place.
3.21 The research is mainly qualitative consisting of interview responses from lawyers, insurers and claims managers of whom 30 specialised in personal injury, 12 in clinical negligence and 12 in housing disrepair. On personal injury, the interviews were supplemented by quantitative analysis of 158 claimant solicitor files of cases concluded before April 1999 (pre-CPR) and 152 files from the same firms opened after April 1999 and concluded by the time of the study (post-CPR). The study therefore focused on small, quickly resolved cases.
3.22 The main findings are as follows:
90% of cases settled for less than £7,000 and 85% settled without recourse to the courts
most practitioners regarded the Woolf reforms as a success
the reforms provide a clearer structure, greater openness and make settlements easier to achieve
users thought that both protocols establish clear ground rules on how to formulate and respond to claims, focus minds on the key issues at an early stage and encourage greater openness to smooth the way to settlement
housing practitioners reported similar responses even though there was, as yet, no protocol in that area
overall time from instruction to settlement of personal injury cases remains unchanged
there is some evidence that both damages and costs have risen in personal injury cases
3.23 In all three areas the researchers found evidence of a culture change and better communication between opposing sides, which had increased the number of claims settling without going to court.
3.24 Response to the report 'More Civil Justice?' has generally been favourable with particular recognition of the increased openness of dispute culture leading to better relationships between claimant and defendant lawyers, which increases the prospect of settlement. When the report was published, Lord Phillips, Master of the Rolls and Head of Civil Justice, said: "The Woolf reforms, in this area, have been a success, not an unqualified success: they have not resulted in a reduction of costs, as far as one can see, but they have been very successful in other areas. It almost used to be part of a solicitor's job to be as rude as possible. That, alas, has not vanished entirely, but it has almost gone. The Woolf reforms require the parties to come into negotiation before the action is started, to make it plain what they are claiming, and to make sure that both sides have the data they need to form a realistic appraisal of the case so they are in a position to reach a sensible settlement."
3.25 At a Law Society Conference held in January 2002, Lord Phillips stated that there had been widespread support for the protocols from both claimant and defendant interests. "I believe that the drop in the volume of litigation reflects also the impact of the pre-action procedures and shows that both lawyers and litigants are acting in a spirit of greater co-operation and far less aggression. The success of protocols has led to all sorts of associations of litigants to set about producing their own. But there is now an over-enthusiasm to produce individual protocols covering relatively narrow areas of practice with a danger of overlap and possible conflict."
3.26 There are a number of other protocols under development, for such disputes as arise from disease and illness claims, housing disrepair, intellectual property, and contentious probate and trusts. To prevent an unnecessary proliferation of protocols, LCD drafted a general protocol for use in all cases to which no specific protocol applies, and issued a consultation paper in October 2001 with a deadline for responses of 31 January 2002. The responses have been analysed and a report has just been published. [Endnote 3] It is clear from the responses that any attempts to produce a protocol capable of applying to all other types of dispute are unlikely to be successful. We are, therefore, exploring ways to build on the existing provisions within the CPR and the Practice Direction on protocols.
3.27 Part 36 has been welcomed by all interested groups as a means of resolving claims more quickly: claims which settle without court proceedings and those where proceedings are issued.
3.28 Part 36 offers were proposed by Lord Woolf in the Access to Justice Interim Report and were introduced on 26 April 1999. Part 36 enables the claimant as well as the defendant to make an offer to settle. This offer to settle can be made before the claim is issued or during proceedings. If the claim proceeds to trial, then any offer made by either party will be taken into account when it comes to awarding costs.
3.29 Unfortunately it is extremely difficult to obtain figures on disputes where no claim is issued so it is difficult to know exactly how often Part 36 has been used in cases which have not proceeded. However, the study leading to the report 'More Civil Justice?' did elicit comments on this aspect of the reforms.
3.30 Respondents involved in personal injury litigation thought that the introduction of claimant offers was the most significant change. Claimant solicitors thought Part 36 offers provided "a way to make things happen" without issuing proceedings and helped speed up the settlement process. There was a strong consensus among those involved in clinical negligence cases that claimant offers provided a crucial element of control over the progress of claims.
This section looks at settlement, Alternative Dispute Resolution and Single Joint Experts.
4.1 There is evidence to show that settlements at the door of the court are now fewer and that settlements before the hearing day have increased.
4.2 The Court Service collects data on the disposal of cases that are listed for trial through a manual return. We have compared data for fast track cases with cases allocated to a district judge pre-CPR. Likewise we have compared data for multi-track cases with cases allocated to a Circuit Judge pre-CPR. We have excluded from the following figures cases which were disposed of in one court by transfer to another.
4.3 For fast track cases, shown in Figure 6, the proportion of settlements or withdrawals before the hearing day has risen from 50% (July 1998-June 1999) to 69% (November 1999-December 2001). In addition, the proportion of cases that went to a full hearing fell from 33% to 23%.
4.4 For multi-track cases, in Figure 7, the changes are less marked. However, it is encouraging to see a significant drop in the number of cases settling on the day of the hearing; the proportion is now down to only 8% for both tracks. This means a reduction in wasted court time.
4.5 After a substantial rise in the first year following the introduction of the Civil Procedure Rules, there has been a levelling off in the number of cases in which Alternative Dispute Resolution is used.
4.6 Alternative Dispute Resolution can be undertaken at any time once a dispute has arisen and the pre-action protocols encourage the use of ADR before a claim is issued. The introduction of the Civil Procedure Rules has raised the profile of ADR by putting a duty on the courts to encourage the use of ADR in appropriate cases and to facilitate such use as one element of case management. Once a claim is issued, ADR is most likely to be encouraged by the courts at the allocation stage, case management conferences and pre-trial reviews. The court may of its own initiative stay the timetable to allow parties to try to settle the case by ADR or by other means.
4.7 On 23 March 2001 the Government announced a major new initiative to promote ADR by issuing a pledge that all Government Departments and Agencies will consider and use ADR in all suitable cases wherever the other party accepts it. A short report on the effects of the pledge has recently been published. [Endnote 4]
4.8 The latest figures from CEDR (Centre for Effective Dispute Resolution) in their newsletter for Spring 2002 show that for the year ending March 2002 there was a reduction of 26% in the number of commercial mediations over the previous year. This scale of reduction is also reported by other mediation providers This appears to be evidence of a return to the steady growth trend that was distorted by the significant 141% increase in mediations in the first full year after the reforms were introduced. The CEDR pattern is consistent with figures from the Association of Northern Mediators which monitored 214 mediations in 2000 but only 93 in 2001. The ADR Group reports a similar large increase in the number of mediations in the year following the reforms which has subsequently levelled out.
| Figure 8: CEDR statistics | ||||
| Apr 98-Mar 99 | Apr 99-Mar 00 | Apr 00-Mar 01 | Apr 01-Mar 02 | |
| Number commercial mediations | 190 | 462 | 467 | 338 |
| % referred by courts | not known | 19% | 27% | 31% |
4.9 Karl Mackie, Chief Executive of CEDR, is still confident that mediation will increase over time: "Woolf laid the foundations for mediation to become an integral part of the judicial system. There was an uplift in the immediate aftermath. Currently we're in a breathing space while things settle, but I think we'll see another surge of interest in the near future."
4.10 John Potts, head of litigation at Clifford Chance, was quoted in the Law Society Gazette in February [Endnote 5] as saying that initially he did not believe that parties would want to settle disputes, particularly those involving large sums of money, without a high quality judge involved. But he now thinks that there are many cases that can benefit from mediation.
4.11 The results of the Legal Director benchmarker survey of 202 companies, published in July 2001 [Endnote 6], found that the number of in-house lawyers who said mediation would be their preferred method of resolving a dispute had doubled to 24% over the past 12 months. More than half (54%) of the in-house lawyers said they expected their use of mediation to increase. This figure rose to 70% among those who had used mediation before.
4.12 A review of the ADR scheme in the Commercial Court and the Court of Appeal, Civil Division, commissioned by LCD, was undertaken by Professor Hazel Genn. The report was published in the spring of 2002 under the title 'Court based ADR Initiatives for non-family civil disputes: the Commercial Court and the Court of Appeal' [Endnote 7] .
4.13 The Commercial Court has been identifying cases regarded as appropriate for ADR since 1993 and the judge may make an order directing the parties to attempt ADR to resolve the dispute. Professor Genn's study covers the 4 year period July 1996 to June 2000 and found 233 cases where an ADR order was made. It is clear that the use of ADR orders has grown since the introduction of the Civil Procedure Rules. During the first 3 years of the study period there were about 30 orders made annually but in the last 6 months 68 orders were made.
4.14 Of the 233 cases full information was available on only 184. Of these, 103 tried mediation with 53 settling on the day. Of the other 50 cases, 21 settled later without going to trial. The experience of those practitioners whose cases settled at ADR was positive with comments on the skill of the mediator, the ability of ADR to overcome log-jams in negotiation, the opportunity to focus on the strengths and weaknesses of the case and client satisfaction with the procedure. There was also a feeling that successful mediation avoids trial costs resulting in savings for clients.
4.15 Of the 81 cases where the parties did not try ADR, 51 settled later without going to trial and only 12 went on to full trial. This suggests that, although the order did not result in settlement via an ADR process, the making of the order itself encouraged the parties to settle in a high proportion of cases.
4.16 A pilot mediation scheme was commenced at Leeds Combined Court in July 2000. This scheme offers mediation to all parties in defended cases. Most parties who took part thought that the mediation had saved them money on the potential costs of resolving the dispute. The initial uptake of the new service was not as high as anticipated but is expected to increase with more publicity. 15 mediation appointments were made between July 2000 and August 2001. Another scheme at Birmingham civil justice centre was launched in December 2001.
4.17 Two recent Court of Appeal cases have highlighted the need for lawyers and those they represent to give careful consideration to the use of ADR.
4.18 In December 2001 Lord Woolf, giving judgment in the case of Frank Cowl & others v Plymouth City Council (2001) EWCA Civ 1935, said: "the importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. This case will have served some purpose if it makes it clear that the lawyers on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable."
4.19 The case of Dunnett v Railtrack plc (in administration) [CA 22 Feb 2002] has been seen as a major endorsement of Lord Woolf's exhortation to solicitors to mediate more and litigate less. In this case the claimant asked for leave to appeal against a judgment in favour of the defendant. In granting leave, the Court of Appeal advised both parties that they should consider the use of ADR but the defendants refused. Following the hearing, the claimant's appeal was dismissed. However the defendant was not awarded costs. Lord Justice Brooke said: "it is hoped that publicity will draw the attention of lawyers to their duties to further the overriding objective ... and to the possibility that, if they turn down out of hand the chance of alternative dispute resolution when suggested by the court, as happened on this occasion, they may have to face uncomfortable costs consequences". This is the first time that a successful party has been refused costs because they declined to mediate.
4.20 Karl Mackie of CEDR wrote in the spring 2002 newsletter: "When we launched CEDR over ten years ago the prospect that mediation would become so established that the courts would penalise litigants for refusing to consider it seemed a long way off. Which is why the Court of Appeal's decision in Dunnett v Railtrack is so significant. The much-talked about possibility of cost sanctions for 'unreasonable' refusal to mediate has been realised and the message to lawyers is clear: take mediation seriously or face the consequences."
4.21 The use of single joint experts appears to have worked well. It is likely that their use has contributed to a less adversarial culture and helped achieve earlier settlements.
4.22 Lord Woolf argued in his Access to Justice reports that the use of experts was a major problem in the civil justice system. They contributed to the cost of litigation, increased the complexity and delayed the proceedings, all of which were against the spirit of his recommendations. He proposed that there be a single joint expert where possible and that the duty of the expert to the court should be emphasised. "As a general principle, single experts should be used wherever the case (or the issue) is concerned with a substantially established area of knowledge and where it is not necessary for the court directly to sample a range of opinions". [Endnote 8]
4.23 The Court Service collects information on cases that are heard through the 'Trial Sampler', which all county courts are asked to complete in March and September each year. Data have been gathered for 8,411 cases heard pre-CPR (March 1994-September 1997) and for 1,979 cases post CPR (September 2000-September 2001). Data for 1998, 1999 and March 2000 were ignored because response rates were too low for effective comparisons to be made. No information on witnesses was collected between 1994 and 1996, so the table in figure 9 below only involves data from 1997 for the pre-CPR assessment.
4.24 This analysis shows that the percentage of trials involving experts has increased since the introduction of the CPR. However, post-CPR, joint experts were used in 46% of trials involving any experts. This increase seems to have resulted from the use of joint expert witnesses in trials where it is likely experts would not previously have been used and the higher proportion of trials associated with personal injury which tend to be more likely to involve experts. The proportion of personal injury trials involving experts rose particularly strongly; from 28% in 1997 to 41% post CPR.
4.25 In an article 'Under Scrutiny' by D Hall for the Solicitors Journal published in December 2001, the author states "Prior to the CPR it was relatively rare to appoint a single joint expert to a case, but now such appointments are becoming increasingly common and are not just restricted to smaller cases. Preparing effective instructions and written questions to a single joint expert is important but these tasks may require skill in the expert's professional field. As a consequence, the use of shadow experts appointed by either side to advise on the case has increased. The assistance of a skilled shadow expert can be highly cost effective, particularly as their input would not involve preparing a report, just giving advice."
4.26 The Expert Witness Institute conducted a second survey [Endnote 9] of its members in late 2001 which confirmed that expert evidence is now firmly under the control of the court. Two years on from CPR it was felt that compliance with dates set by the court was less of a problem but a majority of respondents noticed that the timescale for preparing reports is shorter and this reflects short timetables under case management. A majority also felt that experts' discussions were more common and that such meetings were useful for advancing settlement. 74% of respondents stated that they had acted as a single joint expert and of those 42% have acted more than 10 times - which confirmed the trend for use of single joint experts.
4.27 In responses to the Law Society Woolf Network 3rd survey, 36% said that use of single joint experts was very common and 56% said it was occasional. 91% were happy with the quality of the appointed expert; one comment was "providing good service in almost quasi-judicial role". 44% said they had no concerns about the increasing use of single joint experts with comments such as "Saves time, costs and promotes early settlement." However 56% expressed concerns about the increasing use of single joint experts, such as: "Can result in each side appointing own experts early on and court appointing a third as single joint expert - costs issue." "Often inappropriate in multi-track cases."
4.28 Further comments on the use of single joint experts in the different tracks followed in the 4th survey, conducted in October 2001, 30 months after the implementation of the reforms. 82% of respondents said that they thought single joint experts to be appropriate in fast track cases but only 54 % felt it appropriate in multi-track cases. Comments made by respondents were: "Joint experts are generally suitable for both tracks, but there are exceptions. Some fast track cases require separate experts - courts are very reluctant to order this." "In theory, no distinction should be made between fast track and multi-track. The only issue is whether an appropriate expert can be agreed and that happens less often in higher value cases." "In fast track matters the use of joint experts can result in saving of costs and expedite matters." "It is considered that joint experts are generally appropriate in fast track cases and generally inappropriate in multi-track cases, although it depends on the nature of the case and the issues involved. In some cases use of a joint expert increased costs as the parties appoint their own expert as well, resulting in 3 experts in total."
4.29 In 'More Civil Justice?' respondents concerned with personal injury litigation were reported as welcoming the fact that experts are now less partisan and that they are instructed in a more neutral way. Most claimant solicitors nominate one, two or three doctors and insurers agree to at least one of the names submitted. In the field of clinical negligence, where experts are central to claims, respondents reported that those traditionally known to have a claimant or defendant bias were no longer instructed. There was a strong sense that a joint expert was not suitable if liability was at issue but there was more experience of joint expertise on issues of quantum and the courts were increasingly intervening to order such reports. In housing disrepair cases it remained the preferred approach for the tenant's representative to instruct their own expert and the landlord to use their own, often an in-house surveyor.
This section looks at the Civil Procedure Rules, case management and the reform of statutory appeals.
5.1 Work is continuing on achieving a single set of rules applying to the High Court and county courts. The number of ways of commencing a claim has been substantially reduced.
5.2 Under this general heading, Lord Woolf envisaged a system with a single set of rules for the High Court and county courts and all proceedings commenced in the same way by a claim with special rules for specific types of litigation kept to a minimum.
5.3 The Civil Procedure Rules (CPR) are developing to meet these criteria; they apply to the High Court and county courts, and the number of ways of commencing a case has been greatly reduced. The plethora of old documents to initiate a case: Default Summons, Fixed Date Summons, Writ, Originating Application, Originating Summons and their variations have been done away with and replaced with only 6 different claim forms covering the whole range of civil procedure including probate and possession claims.
5.4 The table at Annex A sets out the coming into force date of the different Parts of the CPR, Practice Directions and Pre-action protocols. The incorporation of the remaining scheduled Rules of the Supreme Court and County Court Rules into the CPR is planned for completion by the end of 2003.
5.5 The Court Service User Satisfaction Surveys conducted in March and November 2001 asked professionals using the civil courts whether the reforms had simplified procedures or not. In March there was an even split between respondents with 42% replying yes and the same proportion saying no. The remaining 16% replied 'don't know'. However in November, 50% stated that the reforms had simplified things whilst a sizeable minority of 37% felt they had not.
5.6 In March, 70% of the general users found court forms easy to understand and 84% of the professional users did. In November the figures were slightly down on the previous results. When asked in November 'how easy or difficult did you find the court procedures to understand?', 70% of the public found the procedures either very or fairly easy to understand compared to only 51% of the professional users.
5.7 Case Management Conferences are a key factor in making litigation less complex, and appear to have been a success.
5.8 Lord Woolf also saw litigation being simplified by the introduction of case management by the court, enabling the court to strike out issues or whole claims where there is no real prospect of success, control discovery, and apply sanctions.
5.9 Under the old rules, the Trial Sampler asked for the number of interlocutory applications in the case and the number of interlocutory applications relating to directions for trial or case progression. Under the new rules, the sampler form asks for the number of applications and the number of case management hearings. The data show a higher proportion of cases with case management hearings than with applications for directions or case progression, 59% in 2000-2001 compared with 43% in 1997.
5.10 The number of cases with applications has also risen since the introduction of the Civil Procedure Rules, from 54% in 1997 to 62% in 2000-2001. However, the average number of applications other than for case management has fallen from 2.5 to 2 per case in which any such applications were made. This is likely to have a downward impact on costs and ensure that cases are resolved in a shorter time.
5.11 One of the functions of case management is to reduce the need for applications in the course of proceedings. The Senior Master has certainly noticed a change. In a recent article in the Judicial Studies Board Journal [Endnote 10], he commented: "Nothing has been so dramatic as the reduction in the Old Bear Garden chambers list. In place of the 30-odd applications per master each morning, some lasting no more than a minute or so, there are now just five or so in each morning as solicitors learn to use the multiple application system to better effect. Solicitors now resort to correspondence with the courts in general and the judges in particular in a manner and to a degree never experienced in the past."
5.12 98% of respondents to the Law Society Woolf Network 3rd survey said that Case Management Conferences were working very well or quite well with only 2% saying they were not working well. Comments made included: "Everyone is involved and co-operative." "Of benefit to both parties and facilitate early settlement." "More willingness to co-operate - court penalising solicitors who don't." However, there was some concern expressed about the consistency of case management decisions.
5.13 LCD commissioned from Nottingham Law School a scoping study into the effectiveness of case management. The study identified difficulties, which were greater than anticipated, in developing a satisfactory method of accessing court data. The Department is carrying out further work on this and is currently engaged in developing and specifying projects which will capture both quantitative and qualitative information and which will provide an in depth view of what is happening in terms of the management of civil cases.
5.14 Lord Woolf described the various methods of appealing or applying to the courts against the decisions of other bodies as 'an irrational kaleidoscope' and recommended that there should be a unified code. [Endnote 11]
5.15 Tackling this issue has proved to be an enormous task. A search of the statute law database revealed over 240 statutory appeal provisions. We are currently checking with other Departments to establish whether this list is complete. We are considering to what extent the various provisions for statutory appeals comply with the appeal provisions in the CPR and whether they could be brought within the CPR provisions. No decision has yet been made regarding changes. However, the broad areas we are looking at include the scope for introducing across the board requirements for permission to appeal and common time limits, the possibility of allowing intervention by interested third parties, harmonising the orders that can be made, and replacing 'case stated' appeals with appeals on a point of law.
5.16 We have already agreed with the Department of Health proposals for a unified system for appeals against the decisions of the eight health profession regulatory bodies. A Health Bill, proposing a High Court model under which appeals from doctors, dentists and osteopaths would no longer be heard by the Judicial Committee of the Privy Council, is expected to obtain Royal assent shortly.
This section looks at the time between issue and hearing and appeals.
6.1 The time between issue and hearing for those cases that go to trial has fallen. The time between issue and hearing for small claims has risen since the introduction of the Civil Procedure Rules but may now be falling.
6.2 Lord Woolf envisaged a system where cases would be conducted in a quicker time frame and the Fast Track was introduced with a 30 week time period from allocation to trial. Lord Woolf also wanted litigants to know what events would take place during this time period and when they would occur. A key to reducing the timescale of litigation is case management in Fast and Multi-Tracks.
6.3 The Court Service collects data on fast and multi track trials from the Trial Sampler which county courts are asked to complete in March and September each year. Data for 1998, 1999 and March 2000 were ignored because response rates were too low for effective comparisons to be made.
6.4 Figure 10 above shows that average time from issue to trial was lower post-CPR; 498 days in 2000/01 following a rise pre CPR from 546 days in March 1994 to 639 days in September 1997. Post-CPR 51% of cases which went all the way to trial took less than 1 year. The decline in average time from issue to trial between 1997 and 2000/01 was spread across cases regardless of type or value. Multi track cases took an average of 656 days, and fast track cases 411 days, including 177 from allocation to trial post-CPR. 25% of fast track cases took longer than the 30 week timeframe from allocation to trial. However, it must be borne in mind that some of those trials heard post-CPR were for claims issued under the old system.
6.5 The Court Service also collects data on High Court trials in the Queen's Bench Division through a sampler which offices of the court are asked to complete in February and November each year. For the purposes of this analysis, data were included in Figure 11 for 1,726 cases heard pre-CPR (February 1997-February 1999) and 784 cases post-CPR (November 1999-November 2001).
6.6 Over the five year period represented in the figure above, cases related to personal injury and negligence tended to take longer than average; 1,291 days compared to 905 days for other, mostly debt related cases. Most of the extra time taken in personal injury and negligence cases was between issue and setting down/allocation; 1,038 days on average compared to 689 days for 'other' cases. The average time between setting down/allocation and trial was 273 days for personal injury and negligence cases compared to 255 days for 'other' cases.
6.7 Average time from issue to trial was lower post-CPR, continuing a downward trend, 1,188 days post-CPR compared with 1,235 days pre-CPR. 35% of cases took less than 2 years to get from issue to trial post-CPR compared with 32% pre-CPR. The reduction in average time from issue to trial was more marked in non-negligence cases (mostly debt and contract) from 950 days pre-CPR to 774 days post-CPR while for cases involving personal injury or negligence the average fell from 1,302 to 1,265 days.
6.8 Anecdotal evidence supports these statistics. In a recent article in the Judicial Studies Board Journal [Endnote 12], the Senior Master said the result of case management "has been the reduction in the time from the case management conference in the RCJ to trial, to 3-6 months for 3-5 day hearings; six months for a weeks hearing and nine months for a four week hearing. This last compares with a two to three year wait under the old regime."
6.9 Although the reforms did not introduce specific timetabling requirements for small claims cases, the average time taken for these cases from issue to hearing has increased as shown in Figure 12. The Court Service collects information on small claims hearings through the Small Claims Sampler which 29 courts are asked to complete three times a year in February, July and October.
6.10 It is notable that much of the increase seems to be concentrated between October 1998 and July 1999, the length of time taken being no more in October 2001 than in July 1999.
6.11 The overall rise in average time is not merely due to a few longer cases. However, it can be partly attributed to a large proportionate decrease in claims of under £1,000 that tended to take less time from issue to hearing and the increase in the upper claims limit from £3,000 to £5,000 which resulted in a greater number of larger value claims that tended to take more time from issue to hearing. Average time between issue and hearing was particularly high post-CPR compared to pre-CPR in cases involving personal injury (74 days extra), and where both sides were represented by solicitors (46 days extra).
6.12 The report 'More Civil justice?' also contained information on the length of time taken from issue to settlement. The file survey of personal injury cases indicated that the median time from receipt of the medical report to settlement had fallen from 170 days pre-Woolf to 123 days post-Woolf. However, the survey also found that the earlier stages of a case had become somewhat slower as it takes longer to instruct a medical expert because of the need to agree names between the parties. In addition, it appears that the experts may be taking slightly longer to prepare their reports. Overall, the survey found that these two changes in effect cancelled each other out and the overall time from instruction to settlement remained much the same at 13 months.
6.13 The number of appeals in the course of proceedings appears to have fallen sharply.
6.14 Lord Woolf wanted a system where appeals from case management decisions would be kept to a minimum and would be dealt with expeditiously. We do not have information on the time taken for dealing with appeals. However, in the years preceding the Civil Justice Reforms high numbers of interlocutory appeals were set down: 609 in 1997 and 520 in 1998. Since then these numbers have greatly diminished. In the year to September 2001, only 70 applications for permission to appeal on a CPR matter were received in the Civil Appeals Office, of which 48 were granted permission.
6.15 At a Law Society Civil Litigation Conference in January 2002 Lord Phillips said "The reduction in interlocutory appeals is one of the major success stories of the Woolf reforms."
6.16 Part 52 of the CPR, which introduced new appeal rules, was implemented on 2 May 2000. This, together with its supporting Practice Direction, refined the requirement for permission to appeal for nearly all cases. Permission to appeal will only be granted where the court considers that there is real prospect of success or where there is a compelling reason why the appeal should be heard. These measures, together with the provisions for lower courts to determine some appeals as set out in the Destination of Appeals Order, will have contributed to the fall in numbers of cases reaching the Court of Appeal. The consultants, Plotnikoff and Woolfson, are conducting research into the effects of these changes in routes of Appeal.
6.17 Overall there has been a considerable reduction in numbers of cases reaching the Court of Appeal. After a gradual annual increase in the numbers of applications for permission to appeal, peaking in 1999/2000 at 2441, the number decreased in the last year to 2328. In addition there was a further reduction in the number of appeals filed to a total of 1319 for 2000/2001 - this represents the continuation of an established decline since 1996/1997 when 1787 appeals were filed.
6.18 The changes in the volume of incoming work together with reforms made to the court's practices have enabled it to achieve the lowest numbers of outstanding cases for more than a decade. In September 1997 the figure of outstanding appeals was 1589 and in September 2001 the total was 832.
7.1 It is still too early to provide a definitive view on costs. The picture is still relatively unclear with statistics difficult to obtain and conflicting anecdotal evidence. Where there is evidence of increased costs, the causes are difficult to isolate.
7.2 A key criterion of the Access to Justice report was that litigation should be less expensive and the costs more proportionate to the value and complexity of claims. There has been a mixed response to the question of the effect of the reforms on the cost of litigation although there is growing evidence of an increase in at least some areas. For example, 45% of respondents to the Law Society Woolf Network 3rd survey said that front-loading of costs was a problem.
7.3 At the London Solicitors Litigation Association Annual Dinner in November last year, Lord Justice May highlighted costs as the biggest problem which could endanger the success of the CPR. However, he regarded early expenditure of effort on a case to enable early settlement outweighed any criticism of front loading of costs as "settlement is the aim of the culture."
7.4 For various reasons it has proved difficult to gather reliable data on the effects of the reforms on costs.
7.5 The Supreme Court Costs Office keeps statistics on bills of costs submitted for assessment and these are published annually in 'Judicial Statistics'. The extracted table for Queen's Bench bills (figure 13 below) shows that while the total value of bills submitted has changed relatively little, the year on year reduction in the number of bills produces significant increases in the average amount.
7.6 The Costs Office has stated that a random sample of bills assessed during 2001 shows an average reduction by the costs judges of 18% of the costs claimed and that this figure is within the expected range of reductions based upon recent experience of assessments. These figures therefore confirm that 'allowed' costs have increased but the causative factors year on year are not so clear to identify as there may be a variety of factors involved. Annual variations can be caused by a factor such as a few very large bills for major cases within the total bills 'brought in' that can have a disproportionate effect on the overall figures and significantly inflate the average value.
7.7 One of the major factors in the increase in costs is the annual review of solicitors hourly rates which has generally resulted in increases in excess of the rate of inflation. There is anecdotal evidence from the Supreme Court Costs Office that experts fees may have increased which is confirmed in 'More Civil Justice?' which reports an increase in the median cost of first medical reports in personal injury cases as having risen from £190 to £280. In addition, the introduction of the £50,000 minimum for issue in the High Court in April 1999 will have increased the average value of claims, so a corresponding increase in average costs is to be expected.
| Figure 13: SCCO figures | |||
| Year | Number of Bills | Total brought in | Average brought in |
| 1994 1995 1996 1997 1998 1999 2000 2001 |
5628 5539 3924 3111 2760 2579 2050 1830 |
£73.7m £84.9m £80.5m £93.8m £87.2m £77.2m £87.4m £87.2m |
£13,095 £15,327 £20,515 £30,151 £31,594 £29,934 £42,634 £47,665 |
7.8 The report 'More Civil Justice?' reflected the difficulty in accurately assessing the effects of the reforms on costs. Claimant solicitors involved in personal injury cases found it difficult to give an overall view - different changes had produced different effects. The fact that fewer claims were being issued was thought to mean 'obvious' cost reduction. On the other hand costs had been increased by front-loading with more work required at an earlier stage.
7.9 By contrast, insurers were united in the view that the average cost of dealing with a personal injury claim had increased markedly. It is clear that the introduction of pre-action protocols has resulted in the front-loading of costs before proceedings are issued. Figures provided by an insurance company specialising in motor claims showed that in the three years prior to the introduction of the reforms costs had increased in line with inflation with costs claimed rising at around 4% pa and costs paid at around 3%. From 1999 to 2001, however, claimed costs had risen by an average of 15% pa while costs paid had increased by around 12%; substantially more than inflation.
7.10 In an attempt to gather further information about the effects of the reforms on the cost of litigation, we approached the Association of British Insurers who arranged for some of their members to provide us with data on claims settled. We obtained data on 218,739 insurance claims settled between April 1997 and November 2001 estimated at 12% of all claims settled during that period. Of these, 90,425 related to employers' liability (estimated at 30% of all such claims settled during the period), 4,269 personal liability claims (est. 2%) and 124,045 motor insurance claims (est. 10%).
7.11 Only one company was able to provide data which distinguished litigated cases and none identified disputed claims, so it has not been possible to draw any conclusions about the effects of the reforms on litigation. It is likely that the vast majority of these claims were not litigated. However, as the reforms have pushed back into the pre-litigation stage through the pre-action protocols, we continued with the analysis to see if any conclusions could be drawn about the cost of settling claims.
7.12 We found that the average cost of settling claims has been rising throughout the period, with increases found in both the amount of compensation (plus benefits repaid to the Compensation Recovery Unit where appropriate) and in third party costs (claimant solicitor costs and disbursements). We sought to establish whether the rate of increase was greater before or after the reforms were introduced but different ways of analysing the data produced different results and we were therefore unable to draw a conclusion on this point for all claims.
7.13 In breaking down the data where it was possible to look at average cost by duration of claim, we were able to establish that average costs in claims of less than one year's duration were only 8% higher in the second quarter of 2001 than they had been in the second quarter of 1997. For claims taking between one and three years to conclude, most of the rise in average costs took place in the second half of 1997 and in 1998. While for claims taking longer than three years, most of the rise in average cost occurred after the middle of 1999. Of course, because these claims took longer than three years, the reforms would not have been in place throughout.
7.14 We looked at the issue of proportionality, but were unable to draw any conclusions as to a rise or fall in average third party costs as a proportion of average compensation because different methods of analysis produced different results. However, we did find for data where it was possible to look at average third party costs by compensation claims, that for claims where the compensation was £5,000 or less, average third party costs rose more after the second quarter of 1999 than before. For larger cases, where compensation was between £5,000 and £15,000, average third party costs rose less in the same period than before.
7.15 At the same time as procedural reforms, fundamental changes to the way litigation is funded have also taken place with the extension of the range of agreements which could be defined as conditional fee agreements (CFAs), making the success fee and/or insurance premium recoverable and allowing recognised membership organisations to recover an element towards self insurance. Cases involving novel aspects of both sets of reforms have recently reached the courts and demonstrate how the new regime is developing.
7.16 Respondents to the Law Society Woolf Network 3rd survey were asked whether they had had difficulties agreeing costs where cases settle pre-proceedings. 52% said that this was not a problem. The other 48% had some concerns including increased use of Part 8 costs only applications and more satellite litigation.
7.17 The case of Callery v Gray concerned the reasonableness of the defendant paying the success fee under a CFA and the premium for an after the event (ATE) insurance policy in a relatively straightforward personal injury claim where liability was not an issue and the case was settled without the need for litigation. After the Court of Appeal reduced the success fee and allowed the ATE premium, the defendants appealed to the House of Lords.
7.18 In giving judgment, Lord Bingham stated that front-line responsibility for making the new funding regime work fairly and effectively, and in accordance with the objects of both the Access to Justice Act 1999 and the new CPR, lay with lawyers agreeing to act under conditional fee arrangements and insurers offering after the event cover. The role of watchdog would be exercised by district and costs judges, on whose judgment and insight in assessing recoverable costs, much would depend. He felt that if they were too strict with the level of success fees or ATE premiums allowed, lawyers and clients might be deterred from proceeding and the objects of the new regime would be defeated. If however they were too generous and allowed excessive fees and premiums, an unfair and disproportionate burden would be placed on defendants and their liability insurers, again undermining a key object of the CPR.
7.19 He went on to say that the House of Lords must decline to intervene in the present case as responsibility for monitoring and controlling the developing practice in the costs field lay with the Court of Appeal, which had itself stressed that the present issues arose at a very early stage in the practical development of the new funding regime, when reliable factual material was sparse, market experience meagre and trends hard to discern. The appeal was dismissed.
7.20 Lords Nicholls, Hope and Hoffman gave concurring opinions, with Lord Scott dissenting to the extent that it was not reasonable for the claimant in this individual case to take out an ATE policy at a stage when the likelihood of litigation was remote.
7.21 In delivering judgment in the case of Lownds v Home Office, the Court of Appeal gave authoritative guidance on the approach to be adopted on assessment of costs with regard to proportionality as directed in CPR 44.4 (2). In this case the claim against was settled at £3,000 plus costs which were subsequently assessed at £16,784. The defendants appealed on the grounds that the costs were disproportionate. This appeal was dismissed by a circuit judge and the original assessment upheld. Taking the case to the Court of Appeal, the appellant argued that the proper approach was first to consider the reasonableness of each item in the bill, and then the proportionality of the total sum and further reduce the bill globally if appropriate. In dismissing the appeal, the Court of Appeal found the proper approach to be the opposite of the appellant's.
7.22 In giving judgment, Lord Woolf stated that assessment should start with a global assessment and then follow an item-by-item approach. The global assessment would indicate whether the total sum claimed was, or appeared to be, disproportionate having particular regard to the considerations in CPR rule 44.5 (3). The judge would then proceed to consider costs, item by item, applying the appropriate test of necessity and reasonableness.
7.23 Assessment of costs in this way would also underline the advantages to a claimant, before embarking on litigation, of making a formal offer to settle which will avoid the risks and costs of litigation if accepted, or provide a prospect of obtaining an order for costs to be assessed on the indemnity basis - with no proportionality test - if the offer is rejected. The judgment emphasised the need for parties to follow the pre-action protocols, to engage in early and sensible dialogue in order to narrow the issues and to ensure that only necessary steps were taken.
7.24 The summary and detailed assessments of costs have also come in for criticism. 62% of respondents to the Law Society Woolf Network 3rd survey felt that the judicial approach to summary assessment was not working well. Results from the Law Society Woolf Network 4th survey tended to confirm the perceptions expressed in the previous survey, with 52% of respondents reporting difficulties with assessment of costs including inconsistency and unpredictable outcomes.
7.25 Speaking at a Law Society Civil Litigation Conference in January 2002, Lord Phillips described the assessment of costs as the 'Achilles heel' of the reforms that were designed to make the courts faster, cheaper and simpler. "It's a very undesirable state of affairs - urgent attention was needed to resolve the problems which would prove very difficult to sort out. Everyone recognises now that the task of assessing costs can be very often more difficult than the task of resolving disputes. Something's got to give. If you are not going to have costs overloading the system, you are going to have to have some robust rules. In interlocutory hearings or hearings lasting less than a day the judge is expected to make a summary assessment of costs. Having done this myself I can tell you that I find it fiendishly difficult. At other end of the spectrum the detailed assessment of costs at the end of a lengthy trial can be a very complex process. The unfortunate reality is that often making a fair assessment of the costs of litigation involves a more intricate process than resolving the issues in the litigation itself. We have got to simplify the assessment of costs."
7.26 Following a Costs Forum in December 2001, the Civil Justice Council set up a Predictable Costs Working Group under the chair of Professor John Peysner to consider the options and data required for introducing a predictable costs regime for recoverable costs in the fast track and the accompanying pre-action protocol. The Group is focussing on personal injury road traffic accident cases under £15,000 and is due to report by early 2003.
8.1 The views of litigants in person are difficult to obtain as they tend to use the system only once. Whilst research is currently being undertaken to assess their views, anecdotally it appears that courts are providing the assistance required.
Court Service User surveys have returned good results.
8.2 Lord Woolf was concerned that people should not be denied the opportunity to use the courts if they did not have large sums of money. The Access to Justice report recommended that there should be more help from advice services and the courts. [Endnote 13]
8.3 A number of initiatives have been developed in this area. The Civil Division of the Court of Appeal has further developed its very successful liaison with the Citizens Advice Bureau located within the Royal Courts of Justice and with other bodies providing services pro bono. A pilot scheme was announced which would enable most litigants in person, who obtain permission to appeal to the court, to be assisted with the preparation and be represented by a barrister, pro bono, at the hearing.
8.4 The Court Service User Satisfaction Survey 2002: Wave 3, published in June 2002, found that when asked about the overall service provided by the courts 73% of the public using the county courts stated that they were very or fairly satisfied with the service. 68% of the public found that the court forms were very or fairly easy to understand. With regard to the leaflets available at the county courts, 76% of the public said that the clarity of information was good and 91% stated that the leaflets contained very or fairly useful information. 78% of the public said that they were very or fairly satisfied with the knowledge of the staff and 83% were very or fairly satisfied with the helpfulness of staff when telephoning the courts.
8.5 CPR 3.1 and 44.3(5) allow the court to take account of non-compliance with pre-action protocols or orders made during proceedings when giving directions or making orders as to costs. In a recent article [Endnote 14] about the use of pre-action protocols which referred to the Clinical Disputes Forum survey of users of the clinical negligence protocol, Suzanne Burn asked whether courts are using these powers. "A worryingly high percentage of the respondents to the Law Society and CDF surveys said that judges were failing to do so. Yet are practitioners applying for sanctions? A negative response on the allocation questionnaire relating to compliance with the protocol will not of itself prompt the case management judge to apply a sanction - an application or letter with details of what has not been done and the impact on the aggrieved party are necessary". However, she has found growing evidence from reported cases that, even when the breach is of a draft protocol, the courts are prepared to apply sanctions.
8.6 82% of respondents to the Law Society Woolf Network 3rd survey said that protocols were generally complied with but 68% said that breaches did not attract a sanction. In the 4th survey respondents were asked whether they had applied for sanctions where they had experienced non-compliance - 60% stated they had never done so. Supporting comments included: "There is a perception that minor breaches will be overlooked by district judges in the interests of costs/delay." "It is sometimes more proportionate to crack on with the dispute rather than waste time and resources taking behavioural points that often enjoy limited success with judges anyway." However, 48% of respondents stated they had seen sanctions for a breach applied when asked for.
9.1 In the final report on Access to Justice, Lord Woolf envisaged that a Head of Civil Justice would have overall responsibility for the civil justice system in England and Wales. This function was first fulfilled by the then Sir Richard Scott, who was Vice Chancellor, and more recently by Lord Phillips, the Master of the Rolls and Chairman of the Civil Justice Council.
9.2 The Head of Civil Justice has a number of responsibilities, namely:
Providing the leadership and authority required to take forward reform, establish the practices and procedures necessary to bring about appropriate case management by the judiciary, and develop a single, co-ordinated, efficient and flexible system of justice;
Championing the need for an appropriate share of judicial and other resources to be allocated to civil business;
Promoting arrangements for the deployment of judges which provide the best balance of experience and general competence;
Proposing practice directions and guidance aimed at improving judicial management and enhancing consistency of practice between different civil courts at all levels;
Promoting the development of appropriate training for the judiciary in discussion with the Judicial Studies Board;
Developing, in partnership with the Court Service, arrangements for monitoring the operation and administration of the civil courts and for the introduction of necessary reforms;
Promoting regular consultation with users of civil courts.
9.3 Lord Woolf also recommended that a nominated Circuit Judge should be responsible for the effective organisation of trial centres and their satellite courts. Following this recommendation, in October 1998 the Lord Chancellor appointed a senior civil judge, known as the 'Designated Civil Judge' to each civil trial centre (30 in number). Their role is to provide leadership with particular responsibility for promoting an effective and consistent approach to case management.
9.4 Designated Civil Judges work closely with the Group Manager and Diary managers to maximise available judicial resource to meet the respective demands of cases allocated to the three different tracks. They liaise closely with the Senior Presiding Judge and other senior supervising judges on the prioritisation of workload to ensure that the needs of civil work take equal precedence with those of family and crime. They are also involved in the JSB training arranged for judges on case management and any other continuing training needs.
9.5 Lord Woolf also recommended the establishment of a Civil Justice Council "as a continuing body with responsibility for overseeing and co-ordinating the implementation of my proposals". Such a Council was established on a statutory basis in the Civil Procedure Act 1997, with the following functions:
keeping the civil justice system under review;
considering how to make the civil justice system more accessible, fair and efficient;
advising the Lord Chancellor and the Judiciary on the development
of the civil justice system; and
referring proposals for changes in the civil justice system to the Lord Chancellor and the Civil Procedure Rule Committee, and making proposals for research.
9.6 The Council has met regularly since March 1998. Initially five sub-committees were established, covering the Council's priority areas of civil procedural reform: Alternative Dispute Resolution, Enforcement, Fees, Funding, and Litigant Information. During 2000 the Council created a sixth sub-committee to consider the reform of procedures and law relating to Housing and Land.
9.7 The Council fully recognises the importance of testing the effectiveness of the reforms and now participates in practical evaluation such as the acquisition of costs data from the insurance industry. In addition the Council jointly commissioned with the Law Society the research on pre-action behaviour recently published under the title 'More Civil Justice?'.
9.8 Lord Woolf also wished to see the judiciary and the Court Service working in partnership. In the context of the Courts and Tribunals Modernisation Programme, a close working partnership has been developed. A Judicial Technology Board, chaired by Lord Justice Brooke and including three other judges, has been established alongside the CTMP Board. Its functions include maintaining a strategic overview of modernisation issues which affect the judiciary, progressing implementation of the Judicial IT strategy, and providing a judicial view on the prioritisation between different projects.
9.9 Five Judicial Advisory Groups support the new Board with members from the different levels of judiciary on each. Their function is to work closely with the Court Service project teams and to define the judicial requirements for those projects. The Court Service has appointed a Judicial Liaison Manager to assist the Board and to facilitate communication between the Board, the Advisory Groups and the project teams. The Civil and Family Advisory Group is concerned with the case management system, hearing and business centres, and external facing issues such as online services and partnerships with legal advisers and customers. The other Groups are looking at In Court Technology, with topics including electronic presentation of evidence and video conferencing; Hardware and Infrastructure, with ongoing supervision of the Judicial Technology Project; Training, Knowledge Management and Intranet, looking at IT training for the judiciary; and Criminal Justice issues.
9.10 Although members of the judiciary have been consulted about planned changes in the past, this new structure represents a step change in the way the Court Service and judiciary work together to achieve progress.
10.1 In his final report on Access to Justice, Lord Woolf envisaged that the new civil justice landscape would include features such as heavier and more complex cases being concentrated at trial centres, which would have the necessary resources including specialist judges. He also thought that better ways of providing access to justice in rural areas should be developed. Courts should have access to the necessary technology to monitor the progress of litigation, and litigants should be able to communicate with the courts electronically and through video and telephone conferencing facilities.
10.2 In advance of the CPR coming into effect, civil trial centres were established around the country. All county courts hear fast track cases, but multi-track cases are heard at the trial centres. District Registries with mercantile lists and specialist judges have been established in Birmingham, Bristol, Cardiff, Chester, Leeds, Liverpool, Manchester and Newcastle. Specialist judges to deal with Technology and Construction matters are also available at the above courts and at Exeter, Nottingham and Salford.
10.3 The Court of Appeal has continued to develop its plans for sitting outside London and during 2001 sittings were conducted in Cardiff, Manchester and Exeter to hear locally relevant cases. One of the appeals heard in Cardiff resulted in a reserved judgment, which was subsequently delivered by means of video link technology between the Royal Courts of Justice and Cardiff, when consequential applications in relation to costs were also dealt with.
10.4 Respondents to the Law Society Woolf Network 3rd survey were asked how well they thought courts in their area were resourced. 57% stated quite well and 9% said very well. The 34 % who did not reply positively to this question submitted comments on such problems as: listing delay, disappearing files, low numbers of staff and inexperienced staff, lack of conference facilities, late notification of hearing dates and lengthy delays in issuing correspondence and orders.
10.5 The report following the Law Society Woolf Network 4th survey includes comments about the service received from the courts. Some courts were criticised for delays in waiting for hearing dates while others were commended for efficiency and speed of work. Examples of comments made include: "No difficulties - very co-operative and flexible" "Failure to deal with work promptly" "In our area we have excellent court staff and judiciary. There is an excellent open dialogue with the courts and it is seldom indeed that problems cannot be addressed at a local level." "Very slow and inefficient. Constantly losing faxes and letters." "Delay in drafting orders. Delay in sending out allocation questionnaires." "Our local court functions very well."
10.6 The Court Service issued a consultation paper 'Modernising the Civil Courts' in January 2001 and asked for responses by 21 April 2001. The aim was to build on the success of the Woolf reforms. Over 100 replies were received and a report on the outcome of the consultation process was published in May 2002 entitled 'Modernising the Civil and Family Courts' [Endnote 15]. The report shows how Court Service think civil justice should be administered, what structures are needed and how services should be provided.
10.7 The proposed new model for Civil and Family justice aims to:
increase the choices for people who need to use the courts;
reduce social exclusion in the system of justice;
improve the use of technology in the courts to enhance service.
10.8 The main features are:
Primary Hearing Centres - 93 principal venues will be established for civil and family hearings.
Local Hearing Venues - 52 full time and 130 part time local venues will improve access to hearings, particularly in rural areas, through the use of existing county courts, partnerships with magistrates courts and hired venues. This will result in a total of 275 hearing venues which represents an increase of 15% over current arrangements.
Technology - A new case management computer system will be developed which will support electronic files, records and diaries; information about court hearings will be made available on the Internet.
Business Centres - Centres will be established to carry out most of the administrative work, providing back-office support to hearing centres and dealing with all aspects of undefended cases. The centres will be the focus for all customer contact whether by letter, telephone, or e-mail beyond the current limited opening hours of 10.00am to 4.30pm offered by most courts.
Electronic Service Delivery - Services will be provided electronically including via the internet, telephone, digital TV and video conferencing. The Money Claim Online service is an example of this which has already started.
Field Based Enforcement - There will be a new structure for the county court bailiff service. It will be a field based organisation supported by regional offices and modern technology.
Easy payment methods - Payments into court will be able to be made through banks and building societies and regular users will be able to use debit or credit cards.
10.9 Of course, some projects are already underway. 63% of respondents to the Law Society Woolf Network 3rd survey had encountered occasional use of telephone conferencing and 19% reported it as very common.
10.10 On the modernisation plans, Ian Magee, Chief Executive of the Court Service, said: "These plans are a major part of our Courts and Tribunals Modernisation Programme which will enable us to change radically the way that the courts work. This Programme will make full use of the opportunities that modern IT provides, including the Internet, to ensure the courts can play their full part in joining up justice, through more effective case management systems and exchange of information. We must provide court users with better access to the courts, better information and a wider choice of services, if possible available 24 hours a day. Judiciary and court staff need the tools and the training to do their jobs. We will also be able to make use of our resources by, for example, taking much of the back office administration into a few business centres, leaving a network of well equipped hearing centres to concentrate on the core business of hearings and case management. This programme will take time and more investment to get it right but we have already made a good start. Pilot projects like Money Claim OnLine are already demonstrating the improvements that are to be gained from changing the way the courts do business."
10.11 Money Claim OnLine [Endnote 16] (MCOL) went live on 17th December 2001 and was officially launched in February 2002. It is the first in a range of electronic services for court users accessible via the Internet. MCOL is designed to be easy to use and has on-screen help at each stage. Individuals, solicitors, government departments and businesses can issue claims for fixed sums of money up to £100,000 and pay the court fees electronically with a credit or debit card. The system also allows a claimant to file an acknowledgement of service or defence, enter judgment by default or by admission, and apply for the issue of a warrant of execution if the judgment is not paid as ordered.
10.12 All MCOL claims are processed through the established County Court Bulk Centre at Northampton where there is already expertise in administering a centralised system. Most claims are issued, printed and posted to the defendant on the day the request is submitted. Although updates to the records are only made during normal working hours, claimants can check the progress of their claims at any time of the day or night. The Court Service expects to have 25,000 claims made using the new service by the end of 2002.
10.13 A user review of MCOL appeared in the spring 2002 issue of the newsletter for members of the Civil Court Users Association. The author was generally impressed with the service stating: "It is a relatively straightforward process though there are a couple of niggles which I have no doubt the Court Service will iron out ... .On the positive side I used the service at around 11 p.m. on 27th December. The claim was formally issued on 28th and I received my Notice of Issue through the post on 29th. If that level of service is maintained, I can foresee a considerable drop in the number of claims being issued in local courts."
11.1 In Access to Justice the final report, Lord Woolf emphasised the importance of giving judges the appropriate training required to deal with the management of cases, and the need for judges to have the administrative and technological support which is required for the effective management of cases.
11.2 Training for judges is arranged by the Judicial Studies Board (JSB). This board was set up as a formal training body in 1979 - informal training of judges having taken place since 1963. The training is controlled and conducted by the judges themselves with the support of an administrative team. The Civil Committee of the JSB planned the training for the introduction of the Civil procedure Rules in four stages.
11.3 Stage 1 comprised a series of seminars from April to Nov 1997 for all full-time judges on the principles of the reforms and case management. Stage 2, which ran from April 1998 to March 1999, consisted of courses to develop a common approach to implementation and operation of the new procedures. Stage 3 consisted of local training events aimed at developing a team approach to case management. Stage 4 was aimed at part-time members of the judiciary, 1,524 of whom attended circuit based sessions chaired by local Designated Civil Judges between April and September 1999.
11.4 The policy developed for the CPR training was new in that different levels of the judiciary were trained together to foster a greater understanding of the different roles in managing cases under the new system.
11.5 As mentioned in section 9, much work is being undertaken to develop new IT systems for the judiciary as part of the Court Service's Courts and Tribunals Modernisation Programme.
This section looks at the assistance courts provide to litigants and research.
12.1 Lord Woolf recommended the following activities as necessary to ensure that litigants received the assistance they require:
courts will provide advice and assistance to litigants through court or duty advice and assistance schemes, especially in courts with substantial levels of debt and housing work
courts will provide more information to litigants through leaflets,videos, telephone helplines and information technology
court staff will provide information and help to litigants on how to progress their case.
12.2 The Court Service has made progress on many of these aspects. A new series of leaflets was produced by the Court Service in 1999 - many have received a Crystal Mark award showing that the clarity of the contents has been approved by the Plain English Campaign. The series consists of nine leaflets to guide the litigant in person through all stages of making a claim from issue to judgment with descriptions of the procedures for all three tracks - small claims, fast and multi. In addition some of the leaflets are designed to provide guidance to a defendant in person where appropriate.
12.3 A further series of leaflets deals with various options for the enforcement of a judgment. The first leaflet entitled 'I have a judgment but the defendant hasn't paid -what can I do?' provides brief details of methods of enforcement and there are individual leaflets for each method giving full details. Updated leaflets have recently been introduced to take account of the changes to enforcement procedures which took effect in March this year.
12.4 Miscellaneous leaflets deal with other court matters such as guidance for judgment debtors, court hearings, court fees, appeals and the duties of bailiffs and Sheriffs' Officers.
12.5 The Court Service User Satisfaction Surveys, conducted in March 2001, found that 75% of court users had seen the leaflets (mainly at the courts) and that 82% of those rated them well for clarity of information and 90% rated them well for usefulness of information. The November results showed similar figures.
12.6 In both surveys users were asked how satisfied they were with the overall service provided by the courts. In March 79% of public users were either very or fairly satisfied and in November this figure had reduced slightly to 76%. 73% of professional users were satisfied in March but this figure had increased to 83% in November.
12.7 The LCD established a Research Secretariat in 1996. In the area of civil justice, its function is to commission research on a variety of topics to ensure that policy decisions are evidence based and to assist with evaluation of reforms.
12.8 Since then a number of reports have been published which concern litigants' views and experiences, in particular: 'The Central London County Court Pilot Mediation Scheme' [Endnote 17], by Professor Hazel Genn, 'The Study of the services provided under the Otton Project to litigants in person at the Citizens Advice Bureau at the Royal Courts of Justice' [Endnote 18] by the consultants Joyce Plotnikoff and Richard Woolfson, and 'Monitoring the rise in the small claims limit: litigants' experiences of different forms of Adjudication' [Endnote 19] by Professor John Baldwin. Further research into small claims by Professor Baldwin will be published later this year, Joyce Plotnikoff and Richard Woolfson are conducting research into the effects of the reforms on the Court of Appeal, and Richard Moorehead is researching the experiences of litigants in person other than in small claims cases.
12.9 More general research into litigants' needs has been commissioned by the Legal Services Research Centre (LSRC). It takes the form of a National Legal Needs Survey conducted by the National Centre for Social Research (NCSR) in the summer of 2001. The survey was based upon the previous work undertaken for the Nuffield Foundation survey in 1998 by Professor Hazel Genn published as 'Paths to Justice'.
12.10 A two-stage process was used. 5,611 people were interviewed face-to-face in their homes using a screening questionnaire to establish what justiciable problems they or members of their household had experienced in the period January 1999 to June 2001. All those considered to have had a non-trivial justiciable problem were then asked to answer a second questionnaire which dealt with the resolution of that problem in more detail. 31.5% of the original interviewees reported having experienced at least one justiciable problem and then took part in the second stage.
12.11 The results are currently being analysed with the final report due for publication in spring 2003. It will provide a comparison with the 1998 Nuffield survey. It has been proposed that a repeat of this survey should be conducted at 3 yearly intervals, with the next one being due in the summer of 2004 with the report following in 2005.
13.1 The civil justice reform programme had its genesis in the then Lord Chancellor's commission to Lord Woolf in March 1994. The bulk of the procedural changes flowing from Lord Woolf's report "Access to Justice", of July 1996, were implemented in April 1999. The changes to housing procedures were implemented in March of this year and it is the Civil Procedure Rule Committee's (CPRC) intention to assimilate the remainder of the scheduled rules by the end of 2003. That will bring to an end the programme of reform as envisaged by Lord Woolf. A first tranche of changes to enforcement procedures was also made in March, albeit that Lord Woolf's recommendations did not cover enforcement. Further changes will come from the Enforcement Review, which is a programme in its own right, and require primary legislation.
13.2 We will continue to evaluate the reforms, and plan to issue a further publication in this series in two years time. By that time we will have gathered more evidence on case management and the research currently underway into the Court of Appeal and litigants in person will have been completed. In addition, as the reform programme is completed we are considering how the major changes will be evaluated.
| 26 April 1999 |
|
| 26 May 1999 |
|
| 11 August 1999 |
|
| 13 December 1999 |
|
| 28 February 2000 |
|
| 2 May 2000 |
|
| 3 July 2000 |
|
| 2 October 2000 |
|
| 16 July 2001 |
|
| 15 October 2001 |
|
| 4 March 2002 |
|
| 25 March 2002 |
|
B.1 This section sets out the aims of Lord Woolf's review, briefly summarises his diagnosis of the ills of the civil justice system and his blueprint for the future as set out in the two reports on Access to Justice.
B.2 In 1994, Lord Woolf was asked to review the rules and procedures of the civil courts in England and Wales.
B.3 The aims of the review were:
to improve access to justice and reduce the cost of litigation
to reduce the complexity of the rules and modernise terminology
to remove unnecessary distinctions of practice and procedure.
B.4 Lord Woolf identified the problems within the old system as principally:
litigation was too expensive, in that costs often exceeded the value of the claim;
litigation was too slow in bringing a case to a conclusion;
there was a lack of equality between litigants who are wealthy and those who are not;
litigation was too uncertain in terms of time and cost;
the system was incomprehensible to many litigants;
the system was too fragmented since there was no clear overall responsibility for the administration of civil justice;
litigation was too adversarial as cases were run by the parties and not by the courts with the rules all too often ignored by the parties and not enforced by the courts. [Endnote 20]
B.5 To confront these issues, Lord Woolf took a wide-ranging view and looked at the structure of the civil justice system and the use of technology, as well as procedures both within and outside the courts. Progress would require a "radical change of culture for all concerned". [Endnote 21]
B.6 In addition, the second stage of the inquiry concentrated on particular areas of litigation where Lord Woolf considered that the civil justice system was not meeting the needs of litigants. These were medical negligence, housing, multi-party litigation, judicial review and the specialist jurisdictions.
B.7 Lord Woolf identified the principles which should underpin the civil justice system in his Interim Report. His subsequent findings were based around these principles. [Endnote 22]
The system should be just in the results it delivers.
It should be fair and be seen to be so by:
ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights;
providing every litigant with an adequate opportunity to state his own case and answer his opponent's;
treating like cases alike.
Procedures and cost should be proportionate to the nature of the issues involved.
It should deal with cases with reasonable speed.
It should be understandable to those who use it.
It should be responsive to the needs of those who use it.
It should provide as much certainty as the nature of particular cases allows.
It should be effective: adequately resourced and organised.
B.8 In his interim report, Lord Woolf stated:
"All of the evidence which I have received in the course of my Inquiry indicates that the present system does not conform with or support the principles which I [have] identified ... I have concluded that the unrestrained adversarial culture of the present system is to a large extent responsible for this." [Endnote 23]
B.9 In order to address these problems, the Access to Justice Report recommended radical procedural change putting greater emphasis on settlement and giving control of litigation to the courts.
B.10 Key new features of the system were to be:
Pre-Action Protocols - to provide a clear framework for both parties to follow, to resolve or at least clarify a dispute before the issue of a claim.
Part 36 offers - to enable claimants to make offers to settle, as well as defendants.
Single joint experts - to reduce costs and promote co-operation between the parties.
Case Management - to ensure cases are dealt with justly. Defended cases would be allocated to one of three tracks:
Small Claims Track - for personal injury cases up to £1,000 and all other cases up to £3,000. In the light of research by Professor John Baldwin, it was decided to raise the upper limit to £5,000. Personal injury and housing disrepair cases of less than £1,000 were excluded.
Fast Track - originally intended for cases above the small claims limit and not exceeding £10,000. The upper limit was changed to £15,000 before implementation. Cases would be run according to fixed timetables leading to trial in 20-30 weeks. The trial would be expected to last one day or less with limits on oral and expert evidence.
Multi Track - for cases over £10,000 (changed to £15,000 before implementation) and those cases which were too complex for the fast track. Case management by judicial teams would be a feature of the track and there would be either standard or tailor made directions as appropriate.
Costs - to increase certainty and proportionality, there would be fixed costs for cases on the fast track and the development of benchmark costs for multi-track cases. Costs orders were to better reflect the conduct of the successful party and the outcome of individual issues. Fixed costs were introduced for fast track trials
Rules - to reduce complexity there would be a single set of rules for the High Court and county courts.
ADR - the use of Alternative Dispute Resolution would be encouraged.