Ten years since the introduction of the Civil Procedure Rules – and 15 years since Lord Woolf’s first Access to Justice report – it is worth looking at whether the reforms have realised their ambitions.
Aims and principles
Lord Woolf’s review had three aims:
- to improve access to justice and reduce the costs of litigation;
- to reduce the complexity of the rules and modernise terminology; and
- to remove unnecessary distinctions between practice and procedure.
These aims were underpinned by eight basic principles that Lord Woolf considered had to be met by a civil justice system if it was to “ensure access to justice”. The system must:
- be just in the results that it delivers;
- be fair in the way it treats litigants;
- offer appropriate procedures at a reasonable cost;
- deal with cases with reasonable speed;
- be understandable to those who use it;
- be responsive to the needs of those who use it;
- provide as much certainty as the nature of the particular case allows; and
- be effective, adequately resourced and organised.
One result of the introduction of the CPR has been a drop in High Court litigation by around 80% and county court litigation by over 20%.
Main effect on claims
What have been the main effects of the Civil Procedure Rules on claims that are actually run?
The fast-track procedure has undoubtedly been a successful innovation. Under the old county court rules, the step up from small-claims arbitration to full trial was too great. The CPR committee has now agreed that the fast-track limit should be increased to £25,000.
Another successful innovation is the summary assessment of costs immediately after any hearing that lasts no more than a single day (which necessarily includes all fast-track cases). What this approach lacks in subtlety is more than compensated by the saving in time and yet more costs, as well as the immediacy of the result.
However, probably the most successful change effected by the CPR is in relation to expert evidence. Previously, we often had to deal with “the hired gun” expert who gave the same report in evidence in every case. The Civil Procedure
Rules require and emphasise that the expert’s duty is to the court. The use of a single joint expert will save many litigants many thousands of pounds. The CPR committee has now embarked on a review of Part 35 but no major changes are currently foreseen Part 3 of the Civil Procedure Rules sets out specific and detailed case management powers. It can reasonably be said that, under the CPR, the court has the power it needs to give effect to the overriding objective of enabling the court to deal with cases justly. However, there are some missing links. The first is a lack of will to exercise the available case management powers. Ten years on, the parties or their legal advisers fail to comply with court timetables on too many occasions, and still frequently conduct the litigation in an adversarial fashion, losing sight of the concept of proportionality.
Another important missing link between the court’s powers and achieving the overriding objective concerns the rules relating to costs. These rules do not enable the court to compel litigation to be conducted at a reasonable and proportionate cost. The position has not been helped by the virtual abolition of legal aid, the introduction of conditional fee agreements and the decision to treat after-the-event premiums as if they were costs. Not the complete package
It is not easy to draw absolute conclusions. Woolf justice does appear to be fairer. Lawyers generally like and are comfortable with Woolf. It has reduced litigation and led to more cases settling early. Civil procedures have been improved in terms of quality, although there has been a price to pay in costs.
The Civil Procedure Rules delivered in 1999 did not constitute the complete Woolf package. A number of crucial proposals were left parked on one side, including fixed costs in fast-track cases, improvements in collective actions for consumers and effective IT support for case management functions. We are still waiting for these proposals to be converted into practical reality.
The lingering concern is that the Civil Procedure Rules have fallen short of the original (and wellintentioned) aims of the review set out at the beginning of this article. The Rules themselves have significantly improved the system that governed litigation before April 1998. That they have not done so to the desired extent is not the fault of the rule-makers, but due to the lack of priority given to civil justice by politicians and the Treasury.