CIVIL COURTS CIVIL PROCESS

1. CIVIL COURTSCIVIL PROCESS

2. Objectives • Outline the problems identified by Lord Woolf prior to the passing of the Civil Procedure Rules 1998. • Describe the changes brought about by the Woolf Reforms, to include: simplification of procedures, judicial case management, pre action protocols and encouragement of ADR. • Evaluate whether the Woolf Reforms have been a success.

3. Civil Process Lord Woolf “If ‘time and money are no object’ was the right approach in the past, then it certainly is not today. Both lawyers and judges, in making decisions as to the conduct of litigation, must take into account more than they do at present, questions of cost and time and the means of the parties.” Discuss this statement.

4. Civil Process • The Civil Procedure Act 1997was passed to implement the Woolf Report and in April 1999, the new Civil Procedure Rulescame into effect. • These reforms were made on the basis of four major criticisms made by Lord Woolf of the old civil justice system: • cost • delay • complexity • too adversarial What do you understand by the term ‘adversarial’? What is the opposite of adversarial?

5. Civil Process Lord Woolf’s philosophy was that the adversarial process is not suitable for civil law. Litigation should be a last resort and we must promote cooperation and settlement in an inquisitorial way. Lord Woolf’sgoal was a fundamental change of culture. He stated that a civil justice system should: - be just in the results it delivers - be fair in the way it treats litigants - deal with cases at a reasonable speed - be understandable to those who use it - be effective, adequately resourced and organised - offer appropriate procedures at a reasonable cost.

6. The Civil Procedure Rules 1998 The overriding objective: Part 1 of the CPR emphasises their main purpose as having an overriding objective of enabling the court to deal with cases ‘justly’. Courts must seek to further this objective by managing cases ‘actively’.  How was this achieved? Lord Woolf’s reforms can be split into four broad areas: SIMPLIFICATION OF PROCEDURES JUDICIAL CASE MANAGEMENT ENCOURAGEMENT OF ADR PRE ACTION PROTOCOLS

7. The Civil Procedure Rules 1998 SIMPLIFICATION OF PROCEDURES • 3 track system • Simplification of Language– for example, plaintiff became claimant, writ became claim form and a minor became a child. This is because claimants are encouraged to bring their case without legal representation. • Simpler Forms– the N1 claim form is now the standard form used for all claims and is easily accessible online. It also passed the Plain English Campaign for simplicity and accessibility for claimants not familiar with legal jargon.

8. N1 CLAIM FORM Available from http://www.hmica.gov.uk/

9. Civil Process Part 36 Offer to Settle ADR Admit claim Dispute claim (N9 form) Small Claims Do Nothing Multi Track Fast Track Disclosure Witness Statements Expert Evidence

10. Activity: Role Plays You will be given a scenario and you will work in pairs; one person assuming the role of the solicitor and the other of the client. TIPS: • Assume the client knows nothing about civil procedure. • Remember to give detailed explanations about the tracks, making reference to the scenario.

11. The Civil Procedure Rules 1998 JUDICIAL CASE MANAGEMENT • Active Case Management • Judges are now known as “case managers”, which means they adopt a much more “hands on” approach to the case and are responsible for much more than just deciding the outcome of the case. • Encouraging the parties to cooperate with each other; • Identifying issues at an early stage; • Encouraging the parties to use methods of alternative dispute resolution; • Helping the parties to settle; • Fixing timetables and controlling the progress of the case; • Making use of technology. • This encourages a much more inquisitorial system and should make the system a lot less daunting and intimidating for claimants as well as reduce the need for legal representation.

12. The Civil Procedure Rules 1998 JUDICIAL CASE MANAGEMENT • Limitations on Evidence • Expert evidence is being severely curtailed because they are expensive; often contribute to delay, and then end up agreeing at the court door. • In most cases, the court will encourage a single joint expert which will act for both sides. This is set out in Part 35 CPR. • Encouragement to Settle • Where possible, the courts will encourage people to settle at any time before the case gets to court, because often the costs will outweigh the compensation.   • Part 36 CPR offers are designed to settle disputes without going to court. Both sides can make a Part 36 offer and if accepted by the other side, the claimant is entitled to his costs up to that date. If they are refused and the refusing party is subsequently awarded less by the court, sanctions (penalties) can be made by the court against them. Thus, any Part 36 offer must be considered carefully.

13. The Civil Procedure Rules 1998 PRE ACTION PROTOCOLS • Encouragement on parties to cooperate with each other and enable as much to be done before the trial as possible. The overall aim of these Pre Action protocols is to get parties to settle out of court, thus reducing costs and delay. • Each category of case has its own set of Pre Action Protocols. Each category of case has its own protocol that has to be followed; for example, personal injury, clinical negligence, defamation etc. Both clinical disputes and personal injury pre-action protocols recommend: • Detailed letters of claim; • Reply should be issued within 21 days of the date of posting; • Within three months, both sides should organize full disclosure of key documents; • Agreement on number of expert witnesses (Part 35 CPR); • Use of alternative dispute resolution. • Using the link below, access Annexe C and list the documents that have to be disclosed in a Personal Injury claim: http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_pic

14. The Civil Procedure Rules 1998 ENCOURAGEMENT OF ADR • One of the ways that judges can actively manage cases fulfil their obligation under the Part 1 overriding objective is by encouraging parties to use ADR when this is appropriate. • Parties can postpone proceedings for one month to attempt to settle the case using ADR. Courts should also actively promote its use. However, in Halsey v Milton Keynes General NHS Trust (2004), the Court of Appeal said the courts cannot force parties to ADR as it might be against Article 6 of the European Convention on Human Rights – right to a fair trial. • However, in the previous case of Dunneltt v Railtrack (2002)., the judge had ruled that an adverse costs order could be made against a successful party if that party refused to mediate. • The benefits of this are that there is a likelihood the parties will maintain a working relationship and save themselves the expense of court costs, which, as we have already seen can often outweigh the compensation.Forms of alternative dispute resolution include: • Negotiation • Mediation • Arbitration • Conciliation • Tribunals

15. Key Terminology You should make sure that you are aware of the following terminology in relation to the Civil Procedure Rules Overriding Objective Alternative Dispute Resolution Judicial case management 3 track system Single Joint Expert Simplification of Procedures N1 claim form Pre-action ProtocolsAims of Woolf Reforms Litigation Allocation Questionnaires Adversarial Part 36 Offer to Settle Allocation Questionnaire Create a glossary of these key terms so that you have clear definitions and can use them in a written essay.

16. Analysis of Reforms There are two key reports which have provided an analysis of the Woolf Reforms: ‘Zander on Woolf’ by Michael Zander, New Law Journal 13 March 2009 ‘A Few Home Truths’ by Tony Allen, New Law Journal 3April 2009 These articles show that there has been a mixed response to the passing of the Civil Procedure Rules 1998 – on the whole, they have not been met with much approval. You should access these articles and complete the Woolf Reforms Critique worksheet.

17. Analysis of Reforms • COST • Costs have gone up – early preparation of cases and exchange of information has led to FRONT LOADING OF COSTS, so even those who settle out of court (90%) are affected by this front loading of costs. • Since Woolf, Lord Justice Jackson’s review of litigation costs has resulted in further cuts to the legal aid budget, leaving even more people without access to justice. • DELAY • Fixed date for trial within 30 weeks for fast track claims BUT post issue stage was quicker, but pre-issue was slower. Average time before and after Woolf Reforms is still 13 months. • Solicitors make better case managers than judges, so having judges as case managers contributes to the delay. • The causes of delay were not just the lawyers; the parties themselves contributed, as well as expert reports and court procedures and administration – this was ignored by Lord Woolf.

18. Analysis of Reforms • CASE MANAGEMENT • Case management tends to increase costs, because it generates more work by lawyers. • New rules encourage inconsistent decision making because they are a lottery – people have little idea of how much they will recover if they win or how much they will have to pay if they lose. • Judges vary in their approach to procedural issues because the “overriding objective” gives judges carte blanche. • UNDERSTANDABLE • Peter Thompson QC: • pre-CPR – 391 pages • Post-CPR – 2,301 pages • In the first 10 years alone, there have been 49 updates to the Rules

19. Analysis of Reforms • FAIR • This has been beneficial, according to practitioners, judges and researchers, but is it legal professionals “acting reasonably” to avoid an adverse costs order? • Single joint experts have worked. • Part 36 Offers to Settle have worked. • ENCOURAGEMENT OF ADR • No evidence that this is being enforced at the allocation stage. • Recommendation is that we should see more penalties for judges who do not enforce the requirement to try ADR as seen in cases such as Dunnett v Railtrack and Halsey v Milton Keynes NHS Trust • County Court Claims Issued: • 2,245,324 in 1998 • 1,870,374 in 2005