This essay will seek to analyse the Woolf Reforms and in that context will evaluate the overall qualitative impact that they have acquired on the Civil Justice system. The essay will discuss the background where Woolf Reforms were transferred, the Woolf Reforms, Impact/intent of the reforms, Objective analysis predicated on criticism (advantages and disadvantages) and finally the article will conclude by analysing whether the Woolf Reform has actually been successful in its definitive goal of reducing cost and hold off.
In 1995 there is a survey carried out by Country wide Consumer Council which found that 3 out of 4 individuals who are involved with serious legal disputes were dissatisfied with the civil justice system. It had been discovered that of the 1, 019 respondents, 77 percent presumed that the system was too slow-moving, 74 % stated that the system was too complicated and 73 % said that it was unwelcoming and outdated.
A cursory take a look at history discloses that Pre-Trial process has been the subject matter of numerous reports and questions. Since 1968 there's been the Winn Committee, the Cantley Committee, the considerable Civil Justice review 1985-1988 and the Heilbron-Hodge Working get together jointly create by the Pub and the Law Society. These are beyond your purview of the Essay as the new system of Civil procedure took influence on the basis of the suggestions made by Lord Woolf in his June 1995 Interim Report and his July Final report, both which are entitled 'Access to Justice'.
Senior participants of judiciary have always boldly defended the significance of civil justice and were worried about the degradation and the issues inflicting the civil justice system. Genn further explained that he was aware of the sorry talk about of the civil courts. It had been in this backdrop of ongoing criticism that the previous Conservative Federal government appointed Lord Woolf to handle a far reaching review and overhaul the civil justice system. His inquiry is the 63rd such review in the past 100 years. The 3 perennial problems of cost, delay and complexity have plagued the civil justice system for ages and it was these ills that the Woolf reforms desired to redress. Indeed, the complete ethos of civil justice will are unsuccessful if litigation which in itself is an expensive affair cannot provide timely, less expensive and simple justice.
Lord Woolf wanted to eliminate the flaws in the civil justice system that have been identified to be: very costly, too slow, lacking equality between powerful and prosperous litigants and under-resourced litigants, too uncertain in conditions of the space and cost of litigation, too fragmented and too adversarial.
Therefore it was in this light that in March 1994, god, the father Chancellor setup the Woolf enquiry whereby ways of minimizing delays and increasing accessibility of civil proceedings, and of reducing their cost were found. On 26th Apr 1999 New Civil Method Rules and the accompanying Practice Directions came into force. These rules constitute the most important reform of the civil justice system in the 20th century, introducing the main advice of Lord Woolf's final report. He explained his proposals as providing 'A new landscaping for civil justice for the 21st century'.
The whole ethos of the Woolf reforms is woven around staying away from litigation and promoting pay out between parties. While it will be analysed in detail whether the essential reforms satisfied their purpose or not, it can be mentioned in the affirmative that the Reforms were perfectly received by various quarters of the legal vocation. However, the reforms never have escaped criticism and one of the outspoken critics is Michael Zander.
The inquiry by Woolf posted its final article in 1996 and thereafter the proposals led to the Civil Technique Act 1997 and the Civil Technique Rules 1998, which are the same for the State courtroom and High Court docket. It needs to be clarified here that the changes sought by Woolf Reforms carry effect primarily through the Civil Process Action 1997 and the CPR 1998, although these have been supplemented by new practice guidelines and pre-action protocols.
Lord Woolf, when he began his study of the Civil regulation process identified diverse problems. His interim survey of June 1995 sates that 'the key problems facing civil justice today are cost, wait and complexity, these three are interrelated and stem from the uncontrolled nature of the litigation process. Specifically there is absolutely no judicial responsibility for handling individual cases or for the overall evaluation of the civil courts'. Heilbron Hodge, who called for a 'radical appraisal of the approach to civil litigation form all its individuals', paved just how for Woolf statement and accompanying reforms. It was forewarned by Lord Woolf that without effective judicial control the adversarial process of the civil courts was 'likely to degenerate into an environment where the litigation process is too often regarded as a battlefield where no rules apply' immediate aftereffect of which would be disproportionate price and unpredictable hold off.
Being conscious of all these problems, Lord Woolf envisaged a New Landscape for Civil justice including: Litigation will be prevented wherever possible, litigation will be less adversarial plus more co operative, Litigation will be less complicated, the timescale of litigation will be shorter and more certain, the cost of litigation could be more affordable, more predictable, and more proportionate to the value and intricacy of individual circumstances, celebrations of limited financial means can perform litigation on a more equal footing, you will see clear lines of judicial and administrative responsibility for the civil justice system, Judges will be deployed effectively in order to manage litigation in accordance with the new guidelines and protocols, the civil justice system will be attentive to the needs of litigants.
For paucity of space I will be discussing the key reforms that contain an immediate influence on cost and hold off: Pre-Action protocol, Part 36, Judicial Case Management and ADR. They were the brainchild of Lord Woolf, in this framework I will compare Judicial Figures in regards to the impact of the reforms and can also evaluate the criticisms meted out to these reforms from various quadrants. The proposed objective of most these reforms was to encourage settlement deal, avoid litigation, encourage gatherings to be less adversarial, more cooperative, reduce intricacy of litigation, reduce hold off, and reduce cost. It really is but utmost important to discuss the reforms to see whether these objectives have been met or not.
The idea was pioneered by Lord Woolf and can be considered as you of the most crucial inventions of the Woolf Reforms. Pre-action Protocols concentrate on the conduct of gatherings in the pre litigation stage which is taken into account by the courts both through the case and also towards the finish when the final decision regarding allocation of costs is taken. Pre-action protocols provides an effective methods to this end as they are combined with the practice directions which summarize their chief target as encouraging exchange of early and full information about the prospective claim, keeping away from litigation by promoting settlement deal and where litigation emerges as the last resort, to aid its efficient management. It had been explained by Lord Woolf in the Final report on Access to Justice (1996) that Pre-action protocols are designed to 'build on and raise the benefits of early but well informed settlements'. Clearly you can say that if gatherings know everything before hand, it can promote a wholesome environment through co-operation and the civil litigation process can be averted. There were 9 pre-action protocols produced so far covering vast regions of practice such as accidental injury, medical carelessness and cover. By 2003 they also existed for building and anatomist, defamation, professional neglect and judicial review.
The reason for these protocols was to established down pre-court methods, encourage good communication and early pay out. Further these protocols cast a obligation on the claimant to give the defendant details of the promise and on the other side the defendant must react to these claims in just a stricter time frame. The protocols state that the main element documents on which the party's case wholly rests must be disclosed at an early stage. Both defendant and the claimant must acknowledge the utilization of a specialist see where relevant. When the parties neglect to adhere to these pre-action protocols the immediate effect is charges whereby the party at fault must pay some or all costs of the proceedings. Boasts however, shouldn't be issued until at least 90 days after the first letter of state wherein the claimant has written to the possible accused disclosing his lay claim.
Evaluation/impact of the protocols will be carried out within the next section but it ought to be brought up here that although pre action protocols may be costly and can result in front launching of costs in conditions which would negotiate without them, they could be able to prevent the unneeded costs of issuing proceedings and list for experiencing in the same conditions. Another advantage that employs from the protocols could be that they might give the parties a healthy nudge towards Option Dispute Image resolution.
The Woolf Reforms instituted Part 36 which provides greater incentives for the functions to stay their variations mutually. Under Part 36 methods are present for either get together to make an offer to stay their disputes and these were significantly modified with effect from 6th Apr 2007. Now a component 36 offer can be made before the proceedings start as well as in the appeal proceedings. In this regard 'Offeror' refers to the get together making the offer and the 'Offeree' is the main one acquiring it. Upon acceptance of your offer by the claimant a obligation is cast on the accused to pay the sum offered within 14 days, failure to take action would allow the claimant to enter into judgement. Also, any pre- action offer to settle while making an order for costs will be studied under consideration by courts. A part refusing it'll be cared for less generously and this usually pertains to offers that are available to the other part for at least 21 days and nights after the time frame these were made. Lord Woolf suggested that for funds offer to qualify as an offer under Part 36 it must be produced in writing with the motive to have the results of part 36. In regards to Defendant making the offer, an interval of no less than 21 times must be given whereby the defendant's liability for claimants will be established if the offer is accepted. Beneath the revised Part 36 however, any offer may be withdrawn after the expiry of the 'relevant period', as defined in Guideline 36. 3. 1. c, without the court's permission.
Michael Zander state governments that whenever the defendant pays off a amount of cash into the judge account as an offer of negotiation, the truth would end upon acceptance of the amount of money. However if the offer is refused by the claimant, the defendant can still increase his payment-in. Upon further refusal the truth will go to trial and the results will be dependant on the court. If the Claimant will not restore more than the total amount paid in, the courtroom will order him to pay the cost of both factors from the night out of payment-in. It would be worth talking about Calderbank letters here because theoretically the system applies only to cases which concerned damage or other money cases whereas under these words if the defendant makes an offer of negotiation 'without prejudice save concerning costs' it would virtually be treated by the courts just as as if it was payment into courtroom. Pre -CPR this guideline 36 was applied inflexibly. Post 1999 the courts are able to mitigate the harshness of the original rule where in fact the claimant was automatically bought to pay the cost of both the edges upon inability to secure more than the amount paid in by the defendant. New guidelines now provide for the Claimant's offer, that was considered to be a large change. For money says Part 36 payments apply, however, where the case is not economic, the defendant can still make a component 36 offer (as opposed to part 36 repayment) and thereafter the same basic rules shall apply. However the court's discretion applies. Overall allowing the claimant to make an offer of negotiation under the CPR has proved to be a welcome step. The evaluation of Part 36 will be reviewed within the next section.
This is the most important innovation as it was recognized by Lord Woolf that case control by judiciary, instead of leaving the conduct of the case to the get-togethers, provides the cases to trial quickly and proficiently. It could be seen that the litigants in this new system will have much less control over the speed of the circumstance than in the past. As the case is now subject to a timetable, functions will never be able to acquire proceedings and cause delays. A confident responsibility is cast on the court this means :
Civil Procedure Rules 1. 4(1) stimulating gatherings to co-operate with the other person in do of the proceedings, discovering the issues at an early stage, encouraging get-togethers to use ADR, helping gatherings to settle complete or part of the case. Beneath the CPR Circumstances must be designated to 1 1 of the 3 paths: small statements, fast monitor or multi-track, each having its own separate regime depending mainly on the financial value of case.
Limit for small boasts situations is 5, 000 aside from compensation for injuries and housing circumstances where it is 1000. Proportionate process is used where self-explanatory cases with a financial value of not more than 5, 000 can be chosen without needing significant pre hearing planning or formalities of substantial trial and also without incurring large legal costs. These method under small claims are manipulated by area judges on casual basis. Cases relating volumes between 5, 000-15, 000 are dealt here unless they are regarded unsuitable. The fast track procedure includes a set in place timetable of no more than 30 weeks to trial, limited pre-trial types of procedures, trials restricted to no more than 3 time (which was further lengthened to 5 hours), constraints on oral information form experts and recovery of standard set costs. Cases relating amounts exceeding the fast trail limit or situations with lesser volumes which are believed sophisticated or too very important to small claims or fast monitor cases are dealt with here.
Evaluation of the impact of judicial case management on reduction in cost, wait and complexity will observe within the next section.
ADR, though not part of the traditional Court system, has been earned connection through the CPR. Lord Woolf in his Final Report urged that people should be told and inspired to vacation resort to an increasing number of grievance techniques, or the ADR before taking up legal proceedings. These ADR feature prominently in the guidelines and CPR 1. 4(1) says that 'the judge must further the overriding target by actively taking care of situations'. However, Lord Woolf commented that ADR can't be imposed compulsorily on parties at dispute in civil litigation. You can find no complex court strategies to be adhered to while using ADR and also it saves a lot of time and avoids ever escalating litigation costs.
Experts proof was another area with which Lord Woolf was worried. It was contended by him that expert evidence was a significant cause because of which excessive expense, delay (in some instances) and difficulty increased. He wished to get rid of the machine where both the functions could appoint their own experts, somewhat he envisaged an individual expert who would owe his allegiance to the judge rather than to the celebrations. Given the criticism of his proposal he admitted that though a substantial shift towards sole experts is not immediately possible, nonetheless it was possible to start a shift in that direction.
Before evaluating the reforms it might be stated in the affirmative that the Overriding Goal of the new CPR was to permit the courts to offer justly with the situations. CPR rule 1. 1(1) reads: "These rules are a new procedural code with the overriding target of enabling the court to cope with circumstances justly".
The combined effect of the major reforms was to avoid parties going to litigation and to promote settlement. This merit examination based on empirical data wherein the major focus is to evaluate reduction in cost and wait. Early evidence shows success for these radical changes as, there is 25 %25 % decrease in the amount of cases granted in the region courts in-may - August 1999 which in comparison to the same period in the previous year was much less. This further dropped to 23 % by the end of January 2000. Lord Phillip explained that the reforms have proved to be effective in changing the whole ethos of litigation but litigation itself is still expensive. It had been commented by Gary slapper et al that overall reforms can be seen as a triumphant part of the right way as larger percentage of society can achieve greater access to justice in particular when the problems at dispute are relatively small and can be handled quickly and cheaply in the tiny claims track. However, the reforms do not fare that well where complex commercial disputes are concerned.
As a result of the reforms many positive changes have occurred, the culture has become less adversarial, there is way better exchange of information between your parties prior to the start of litigation and arrangement now targets the substantive issues in the event. 'Credit cards on stand' culture, as it can be called, is a major factor leading to pay out. Communication and exchange of information at an early level always help. Furthermore, claimant offers under Part 36 were praised as claimants could now obtain a response from the accused and defendants also benefitted from them as they could establish upper boundaries to the bargaining. Protocols, by focussing on formulating clear surface rules on the basis of which claims are produced and responded to, encouraged parties to target their intellects on the main element issues at an early stage. File study carried out by Goreily et al disclosed that median amount of time in case of medical report to settlement had dropped from 170 days and nights pre Woolf to 123 days post-Woolf, in doing so reflecting that settlement is becoming quicker.
In case of large statements which were at the mercy of judge timetables, solicitors thought the velocity is becoming quicker. In regards to cost it was recognized that costs increased because of 'front-loading' as now more work is required to be done through the initial stages. Research regarding protocols recommended that it acquired some impact in reducing costs as early on exchange of information may lead to speedier settlements because both sides notice the issues much sooner. Circumstance management evaluation however, received a blended response. Experience in relation to High Court Experts in London was perceived as positive and resulting in a greater motivation to reach agreement before hearing. However, outside London the encounters weren't that positive.
Judicial statistics reveal that the amount of claims have fallen to significantly less than 1, 90, 000 in 2005 as compared to 2, 20, 000 in 1998. All this has happened because the coming into drive of the Woolf reforms, though favourable financial climate may also account for this. Situations have diverted from being litigated in the courts as a result of the use of pre-action protocols and claimant offers under part 36 which encourage pre-trial settlements, causative effect being that only 8% of cases which are listed for trial settle during the course of trial and 70% settle much previously. That is suggestive to the fact that the reforms have been an optimistic step towards out-of-court settlements which have the advantage of providing a quick/quick end to the dispute in conjunction with a reduction in costs. First evaluation of the new Civil Method Rules by the Government indicated the entire advantages of reforms whereby it was stated that situations are settling much early rather than at the court's doorstep. Litigation is undoubtedly the last resort by lawyers and clients who now make better use of ADR. Pre-action protocols were thought to be a success. Each one of these findings are further reinforced by the latest research into the civil justice system.
A major public study published by the institute of Civil Justice at the Rand Organization in California (Kakalik et al, 1996) looked into the effect of American Civil Justice Reform Act 1990 based on a survey of 10, 000 cases. And discovered that early on use of Judicial circumstance management can deliver reductions of one and a half or 2 months to solve cases that would otherwise last at least 9 months. Breakthrough timetables further reduce period to disposition and also the number of time spent by a lawyer focusing on the case. However one disadvantage is that case management will in the end lead with an around 20 hour upsurge in attorneys' work overall.
Only 2 proper clinical tests on the impact of Woolf reforms have been there up to now. The first one was completed for the Civil Justice council and the Law Society (Goreily et al. ') on pre -action behaviour. The second for Office of constitutional affairs by Professors Peysner and Seneviratne dealt with the truth management. It was contended on the basis of this second research that protocols make co-operation, and help put together cases in a organised way and also talked about widespread employment of single joint experts and this days of appointed guns are over. .
It is important here to mention the benefits accruing because of this of the Woolf Reforms which were validated from a variety of sources :
Culture seems to be less adversarial which shows an improved future, Pre action protocols have received laudable applause, Part 36 offers and repayments seem to market healthy settlement, solitary joint experts seem to be to are better in contrast to views of critics.
Judicial Statistics expose that average holding out time in county courts from issue of lay claim to trial has reduced form 85 weeks in 1998 to 52 weeks in 2005. Analysing Statistics from Team of constitutional affairs, Reynolds Porter Chamberlin (RPC) a huge city lawyer discovered that in the first time of the reforms there was a 41. 3 % drop in conditions being litigated and in the following 5 years(in 2005) it further declined to a drop of just one 1. 7%. Region Judge Terence John being sceptical however, stated that the reforms have changed the civil legal world for better and are here to remain. He further discovered that 70 %70 % of the statements are being dealt through the tiny claims track and 20 % through the fast monitor; all of this makes recourse to justice reasonable. Also Judge Charles Harris QC commented, trials are held very briskly therefore of case management which restricts incompetent litigators to lengthen the truth.
A major criticism of the Woolf reforms was installed by Zander who opined that there is tremendous pressure on get-togethers to enter settlement deal once the case begins. Empirical evidence suggests that it is not necessary that pre-trial hearing will reduce cost and delay. Further record by T. Goreily et al suggests that overall time before and after reforms have continued to be the same. (However it might be mentioned, further empirical data on wait consequently of reforms are hard to find. ) It had been contended that reforms have led to increased judicial discretion in the decision making of pre-trial disputes in exchange leading to inconsistent and unappealable decisions. Procedural timetables for the fast record are bound to be a inability as because of great deal of firms will never be able to stick to recommended timetables for a range of reasons. All of this result in unjust sanctions which when enforced may cause injustice to clients for the failings of these lawyers. The Rand record further shows that circumstance management contributes to problem of front side launching as it adds to the lawyers work hours with an increase of work needed at a youthful stage and so higher cost. There were many others who criticised the reforms and it was argued that out of court docket settlements create injustices, because celebrations usually hold unequal bargaining positions due to their financial backdrop.
Lord Justice Jackson's initial article on costs review further confirms that costs of litigation have increased therefore of 'leading launching'. Another problem, as cited by Lord Phillip, is the fact courts are under-resourced to cope with circumstance management and the modernisation of civil courts and benefits from it has failed to go together with the Woolf reforms. Mr. Justice Burton of the QBD evaluated the new guidelines and discussed problems combined with the benefits associated with reforms. Problems were recognized as,
"Courts inflexibility in not allowing expansion of time between celebrations, risk in exploitation of standard disclosure on part of lawyers and clients, the solo joint experts overtaking the role of judges and finally time restrictions being imposed on celebrations". Benefits detailed include: pre-action protocols, encouraging settlement, judicial treatment and Part 36 offers to settle.
Further criticism was outlined in Huck v Robson where the Court of appeal allowed the claimant's appeal, who was not given indemnity costs or interest as his 95-5 offer under Part 36 was considered 'derisory'. It shows the uncertainty created by the new rule. Additionally, it was the case of Three Rivers DC v Bank or investment company of Great britain which were only available in November 1995 and ended after a decade in November 2005 with the claimant abandoning the case against the lender. Rules Lords over here reverted to pre-CPR beliefs and the majority decision resulted in 10 more many years of fruitless litigation with sky-high costs. Zuckerman feedback reflected that such an approach would prove dangerous to CPR reforms unless judiciary steps in and embrace the overriding purpose of coping with situations justly. It needs to be brought up that though there is criticism, it was only in minority and the reforms have achieved a whole lot as they were directed to market a culture of arrangement and co-operation.
My concluding remarks would be that the Woolf Reforms were recognized by both branches of the legal vocation. Furthermore, the judiciary and both place and the legal press welcomed them. Promoting negotiation and staying away from litigation can be the biggest benefit to litigants who usually get entangled in the costly and everlasting court procedures. As we've seen above the idea of three tracks came into being so that different kinds of says can be managed within the specific track where it requires to be allocated. The reforms intended to focus on reduction in cost and wait, however they didn't get away from constructive criticism and decrease in cost is still considered to be a debatable area. Based on the discussion above there have been conflicting views in regards to reduction in cost and the empirical data analysed above also shows that is one particular area which needs further reforms and attention. But the reforms were a part of the right direction and were considered triumphant as they may have resulted in justice being accessible to a greater proportion of culture, especially where the problem is of a tiny mother nature and can be quickly and cheaply handled in lower courts. Holistically, the advantages/positives of the Reforms outweigh the negatives. The reforms pave a good way for the future; still a lot of work must be achieved in a few areas for making timely, inexpensive justice open to the lay down man. It has also been analysed above that still commercial dispute and the supposed settlement in this area never have gained much as the new civil procedure rule which came into being by implementing the major advice of Woolf reforms focussed a significant amount of on wanting to make timely arrangement of small disputes which concerned the lay man. Reduction in cost of litigation as a consequence of reforms was not fully realized but nonetheless it can't be said that the reforms possessed a detrimental impact on civil justice overall as well-timed exchange of information between your parties will promote a culture of co-operation and negotiation, if not always, and as a result of the reforms the problems of delays in litigation were well redressed. On this context its noteworthy to say that specifically Part 36 and Pre-action protocols which were discussed recently have been singled out for praise from various quarters of the legal fraternity. There was a move from the adversarial culture and an increase in out of courtroom settlements was seen. It could be concluded that the building blocks stone for a better and prosperous litigation culture has been laid. What needs to be done now is to rectify the shortcomings of the Woolf reforms and build on the so called revolutionary/much needed positive reforms looking to avoid litigation and promoting timely settlement of disputes, so that gatherings are no longer confronted with a constant litigation process. As being a result in 2009, Lord Justice Jackson was appointed to carry an assessment of Woolf reforms, this appears to be an approach which reflects a way forward. Reduction of cost in civil litigation process is one such area which requires a lot of attention. As an old Chinese proverb will go "A journey of one thousand miles starts off with a single step".