The Civil Justice System

A. The Civil Justice System before April 1999

Before the implementation of the Woolf reforms, there were 2 separate set of civil procedure rules:o The rules of the Supreme Court rules in the White Book for the High Courts and the Court of Appeal. o The county Court Rules in the Green Book for the County Courts. (1) High Court actions were started with a writ; (2) County Court ones by a summons; (3) But there was also specialized procedural which required specific documents and formalities to be used. Problems with the civil Justice System before 1999:o Too expensive Lord Woolf found that one sides costs exceeded the amount in dispute in over 40% of cases where the claim was for under 12, 500. The simplest cases often incurred the highest costs in proportion to the value of the claim. Because of the complexity of the process, lawyers were usually needed, making the process expensive. The sheer length of civil proceedings also affected the size of the bill at the end. o Delays The civil Justice System Review observed that the time between the incident giving rise to the claim and the trial could be up to 3 years for the county court and 5 years for the High Court. Time limits were laid down for every stage of an action but both lawyers and the court disregarded them. o Injustice Usually an out-of court settlement is negotiated before the litigants ever reach the trial stage. o The adversarial process Many problems resulted from the adversarial process which encouraged tactical maneuvering rather than cooperation. o Emphasis on oral evidence Too much emphasis was placed on oral evidence trial. Oral evidence slowed down proceedings, adding to cost and delays.

B. The Civil Justice System after 1999

Lord Woolf in his final report, Access to Justice. He described his proposals as providing A new landscape for Civil Justice for the 21st century. The Woolf report was the product of 2 years intensive consultation and was written with the help of expert working parties of experienced practitioners and academics. The reforms aim to eliminate unnecessary cost, delay and complexity in the Civil Justice System. The general approach of Lord Woolf is reflected in his statement: - If time and money are no object was the right approach in the past, then it certainly is not today. According to r.1.1 (2): o Dealings with a case justly include, so far as is practicable: Ensuring that the parties are on equal footing; Saving expenses; Dealing with the case in ways which are proportionate: To the amount of money involved; To the importance of the case; To the complexity of the issues; and To the financial position of each party. Ensuring that it is dealt with expeditiously and fairly; and Allotting to it an appropriate share of the courts resources, while taking into account the need to allot resources to other cases. The emphasis of the new rules is on wooding litigation through pre-trial settlements. Litigation is to be viewed as a last resort with the court having a continuing obligation to encourage and facilitate settlement.

C. Pre-action Protocol
The pre-trial procedure is, perhaps, the most important area of the civil process, since few civil cases actually come to trial. To push the parties into behaving reasonably during the pre-trial stage, Lord Woolf recommended the development of pre-action protocols to lay down a code of conduct for this stage of the proceedings. Pre-action protocols are a major innovation and aim to encourage:o More pre-action contact between the parties. o An earlier and fuller exchange of information. o Improved pre-action investigation. o A settlement before proceedings have commenced. The pre-action protocols seek to encourage a culture of openness between the parties.

Compliance with pre-action protocols is not compulsory but, if a party unreasonably refuses to comply, then this can be taken into account when the court makes orders for costs. Methods:o Alternative Dispute Resolutions(ADR) What is ADR? A means of resolving disputes without resorting to court action. It is available in regard to civil, but not criminal cases. Why is ADR needed? Court action is not always the most appropriate means of resolving a dispute. Consider, for example: The complexity of law and legal procedures The costs of court action, including legal representation The intimidating atmosphere of the courts The delay in resolution The public nature of court action, which may result in further deterioration of relationships between parties. Conciliation Definition: A procedure like mediation but where third party, the conciliator, takes a more interventionist role in bringing the 2 parties together and in suggesting possible solutions to help achieve an agreed settlement. The term conciliation is gradually falling into disuse and the process is regarded as a form of mediation. Mediation Definition: Mediation is the process whereby a third party acts as conduit through which 2 disputing parties communicate and negotiate in an attempt to reach a common resolution to a problem. Job scope of mediator: The mediator may move between parties, communicating their opinions without their having to meet or alternatively the mediator may operate in the presence of the parties, but in either situation the emphasis is on the parties themselves working out a shared agreement as to how the dispute in question is to be settled.

 In his Hamlyn lecture, Lord Mackay considered 3 alternative systems of mediation and examined the possibility of annexing such schemes to the existing court system. Involving lawyers advising parties as to the legal strengths of their relative positions, he rejected on the grounds that it merely duplicated, without replacing or extending, what was already available in the courts. Based on judges adopting the role of mediators, he rejected on the ground that it might be seen as undermining the traditional impartiality of the judiciary. (The one most favour to him):- broadened the issues beyond the legal, to explore solutions that were not available to court. Case: Halsey v Milton Keynes General NHS Trust (2004) The Court of Appeal emphasized that the criterion was the reasonableness of the belief. In the Halsey appeal, the only ground of appeal was that the judge at first instance had been wrong to award the defendant, the Milton Keynes General NHS, its costs, since it had refused a number of invitations by the claimant to mediate. As the court costs on the grounds that they have refused to agree to ADR, it must be borne in mind that such an order is an exception to the general rule that costs should follow the event. In demonstrating such exceptional circumstances, in the view of the Court of Appeal, the burden is to be placed on the unsuccessful party to the substantive action to show why there should be any departure from the general rule. Lord Justice Dyson said: It seems to us that a fair balance is struck if the burden is placed on the unsuccessful party to show that there was a reasonable prospect that mediation would have been successful. This is not an unduly onerous burden to discharge: he does not have to prove that mediation would in fact have succeeded. It is significantly easier for the unsuccessful party to prove that there was a reasonable prospect that mediation would have succeeded than for the successful party to prove the contrary.

 In taking such a stance, the Court of Appeal was sensitive to the possibility, as it implicitly suggested was the case in relation to the claimants in the Halsey case, that:there would be considerable scope for a claimant to use the treat of costs sanctions to extract a settlement from the defendant even where the claim is without merit. Courts should be particularly astute to this danger. Large organizations, especially public bodies, are vulnerable to pressure from claimants who, having weak cases, invite mediation as a tactical ploy. They calculate that such a defendant may at least make a nuisance value offer to buy off the cost of a mediation and the risk of being penalized in costs for refusing a mediation even if ultimately successful As regards the power of the courts to order mediation, the court of Appeal declined to accept such a proposition, finding it to be contrary to both domestic and ECHR Law. As Dyson LJ stated in delivery the decision of Court: We heard argument on the question whether the court has power to order parties to submit their disputes to mediation against their will. It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court. The court in Strasbourg has said in relation to article 6 of the European convention on human rights that the right of access to a court may be waived, for example by means of an arbitration agreement, but such waiver should be subjected to particularly careful review to ensure that the claimant is not subject to constraint If that is the approach of the ECtHR to an agreement to arbitrate, it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6. In conclusion, in Halsey v Milton Keynes General NHS Trust (2004), the court of Appeal held that the courts do not,

however, have the power to force parties to try ADR, as this might amount to a breach of a persons right to a fair trial under article 6 of the ECHR. Case: Dunnett v Railtrack plc (2002) When Dunnett won a right to appeal against a previous court decision, the court granting the appeal recommended that the dispute should be put to arbitration. Railtrack, however, refused Dunnetts offer of arbitration and insisted on the dispute going back to a full court hearing. In the subsequent hearing, in the court of Appeal, however, held that if a party rejected ADR out of hand when it had been suggested by the court, they would suffer the consequences when costs came to be decided. In the instance case, Railtrack had refused to even contemplate ADR at a stage prior to the costs of the appeal beginning to flow. In his judgment, Brooke LJ set out the modern approach to ADR:Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide it is to be hoped that any publicity given to this part of the judgment of court will draw the attention of lawyers to their duties to further the overriding objective in the way that is set out in Part 1 of the Rules 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 consequence. This has been recent emphasis on the importance of ADR in resolving civil disputes.

In this case, a winning party who had unnecessarily obstructed the use of alternative methods of settlement was denied award of costs. Arbitration Definition: Procedures whereby both sides to a dispute agree to let a third party, the arbitrator, decide. In some instances, there may be a panel. The arbitrator may be a lawyer or may be an expert in the field of the dispute. He will make decision according to the law, is legally binding and can be enforced through the courts. Arbitration Act 1996. The act follows the Model Arbitration Law adopted by the United Nations Commission International Trade Law (UNCITRAL). Arbitration awards are enforceable in the ordinary courts. They must be carried out in a judicial manner and are subject to judicial review. Advantages: Privacy Arbitration tends to be a private procedure. This has the twofold advantage that outsiders do not get access to any potentially sensitive information and the parties to the arbitration do not run the risk of any damaging publicity arising out of reports of the proceedings. Informality The proceedings are less formal than a court case and they can be scheduled more flexibly than court proceedings. Speed Arbitration is generally much quicker than taking a case through the courts. Where, however, one of the parties makes use of the available grounds to challenge an arbitration award, the prior costs of the arbitration will have been largely wasted. Cost Arbitration is generally a much cheaper procedure than taking a case to the normal courts. Nonetheless, the courts of arbitration and the use of specialist arbitrators should be underestimated. Expertise

 The use of a specialist arbitrator ensures that the person deciding the case has expert knowledge of the actual practice within the area under consideration, and can form their conclusion in line with accepted practice. o Case Management Small Claims Jurisdiction of claims limited to no more than 5, 000. With the exception of claims for personal injury where the damages claimed for pain and suffering and loss of amenity do not exceed 1, 000 and their financial value of the whole claim does not exceed 5, 000; And for housing disrepair where the claim for repairs and other work does not exceed 1, 000 and the financial value of any other claim for damages is not more than 1, 000. Hearings to be generally public hearings: But subject to some exception- civil procedure rules part 39 Paper adjudication, if the parties consent: Where a judge thinks that paper adjudication may be appropriate, parties will be asked to say whether or not they have any objections within a given time period. If a party does object, the matter will be given a hearing in the normal way Parties need not attend the final hearing: A party not wishing to attend the final hearing will be able to give the court written notice before the hearing that they will not be attending the notice must be filled with the court seven days before the start of the hearing. These will guarantee that the court will take into account any written evidence that the party has sent to the court. A consequence of this is that the judge must give reasons for the decision reached which will be included in the judgment. Use of experts: Expert witnesses will only be allowed to give evidence with the permission of the court. Costs: There are not generally awarded, but a small award may be made to cover costs in issuing the claim, court fees, for legal advice and assistance relating to proceedings which included a claim for an injunction or an order for specific performance, the

costs assessed by summary procedure in relation to an appeal and expenses incurred by the successful party, witnesses and experts. Preliminary hearings- these may be called: Where the judges considers that special directions are needed to ensure a fair hearing and where it appears necessary that a party should attend court so that it can be ensured that the party understands what he is required to do to comply with the special directions. To enable the judge to dispose of the claim where he is of the view that either of the parties has no real prospect of success at a full hearing. To enable the judge to strike out either the whole or part of a statement of case on the basis that it provides no reasonable grounds for bringing such claim. The introduction of tailored directions: To be given for some of the most common small claims. For example, spoiled holidays or wedding videos, road traffic accidents, building disputes. Fast Track The fast track provides a streamlined procedure for the handling of cases not suitable for small claim track where the value of the claim does not exceed 25,000. The trial is likely to last for no longer than one day; and oral expert evidence at trial will be limited to: One expert per party in relation to any expert field; and Expert evidence in two expert fields. Feature of the procedure: Standard directions for trial preparation which avoid complex procedures and multiple experts with minimum cases management intervention by the courts; A standard limited period between directions and the start of the trial, it will not be more than 30 weeks; A maximum of one day (5 hours) for trial; Trial period must not exceed 3 weeks and parties must be given 21 days notice of the date fixed for trial unless in exceptional circumstances the court direct shorter notice; Normally, no oral expert evidence is to be given at trial, but where allowed , will be limited to one expert per party in any expert field and expert evidence in 2 expert fields; and

Cost allowed for the trial are fixed depending on the level of advocacy Multi Track The multi-track is intended to provide a flexible regime for the handling of claims over 25,000 or lower, more complex, claims if not appropriate for the fast track. This track does not provide any procedure such as those for small claims or fast track. Instead, it offers a range of case management tools: Standard direction Case management conferences Pre-trial reviews Which can be used in mix and match way to suit the needs of individual cases. When a trial period is given for a multi-track case, this will be 1 week.

D. Criticism of the Civil Justice System

Costs o There is growing concern that Lord Woolfs reform increased rather than reduced cost. o The Woolf Network Questionnaire (Law Society, 2002) suggests that the cost of engaging in civil litigation has not been reduced by the civil justice reforms. o The chair of the City of London law Society said in 2008 that Lord Woolfs reforms had backfired. o The pre-action protocols combined with case management may have front-loaded costs onto cases which would have settled anyway before reaching court. o Lord Justice Jackson notes that there are serious problems of non-compliance with pre-action protocols and the courts have become too tolerant of delays and noncompliance with orders! He considers that the general pre-action protocol should be abolished because one size does not fit all. Enforcement o Professor John Baldwin (2003) of Birmingham university concluded that the difficulties with enforcing civil judgment were leaving many claimants disillusioned with the legal system. Out-of-court settlement o The high number of out-of-court settlements creates injustice, because the parties usually hold unequal bargaining positions. In the first place, one party might be in a better financial position than the other and therefore under less pressure to keep costs down by settling quickly.

o A factor was highlighted by Hazel Genns 1987 study of negotiated settlements of accidents claims. She found that having a non-specialist lawyer could seriously prejudice a clients interests when an out-of-court settlement is made. Nonspecialists may be unfamiliar with court procedure and reluctant to fight the case in court. However, specialist lawyers may take advantages if this experience, putting on pressure for the acceptance of low settlement. Court-appointed experts o Court-appointed experts may tend to increase cost in that the parties will often still employ their own experts. Professor Zanders concerns o The cause of delay Lord Woolfs view was that the chief cause of delay was the way the adversarial system was played by the lawyers. Zander has criticized this analysis, pointing out that it is only supported by unsubstantiated opinion, rather than real evidence, despite the fact that it forms the basis for most of the subsequent proposals. By contrast, Zander has drawn attention to research carried out for the Lord Chancellors Department in 1994 into the cause of delay. It identified 7 causes: The type of case The parties The judiciary Court procedure Court administration The lawyers(mainly due to pressure of works, inexpensive or inefficiency) External factors (such as the difficulty of getting experts reports, including medical reports.) o Case management Zander feels that court management is appropriate for a minority of case and that they key is to identify these. He has remarked that judges do not have the time, skills or inclination to undertake the task of case management. The courts do not know enough about the working of a solicitors office to be able to set appropriate timetable. In addition, litigants on the fast track may feel the brisk way in which a 3hours hearing deals with dispute is inadequate (most will not feel justice has been done by a short, sharp trial with restricted oral evidence and an interventionist judges chivvying the parties to a resolution of their dispute.

The study found that judicial case management did lead to a reduced time to disposition. Case management led to an approximate 20 hours increase in lawyer work hours overall. The Rand report noted that the effectiveness of implementation depended on judicial attitudes and concluded that judicial management should wait a month after the defence has been entered in case the action settles. o Sanctions If the judges did impose severe sanctions when lawyers failed to comply with timetable deadlines, it would usually be the litigants rather than the lawyers who would be penalized.