The Civil Justice System

Introduction
1. The civil justice system is designed to sort out disputes between
individuals or organisations
2. The burden of proof is usually on the claimant, who must prove their case
on a balance of probabilities that it is more likely than not
3. Major changes have been made to the civil justice system in recent years
4. After the Civil Justice Review of 1988, reforms were made by the Courts
and Legal Services Act 1990
5. Following continued criticism of the civil justice system, Lord Woolf was
appointed to carry out a far-reaching review of the civil justice system
6. His recommendations were materialized in his report Access to Justice in
1996
7. As with the Civil Justice Review, his am was to reduce the cost, delay and
complexity of the system and increase access to justice. Most of his
recommendations were implemented in April 1999

Lord Woolfs Report

1. In Lord Woolfs Access to Justice: Final Report, a far reaching review of

the civil justice system, he stated that the civil justice system should:
o Be just in the results it delivers;
o Be fair in the way it treats litigants
o Offer appropriate procedures at a reasonable cost
o Deal with cases with reasonable speed
o Be understandable to those who use it
o Be responsive to the needs of those who use it
o Provide as much certainty as the nature of particular cases allows
o Be effective, adequately resourced and organised
2. Lord Woolf concluded that the system at the time had failed to achieve all
those goals
3. It is possible that this failure is inevitable as some of the aims conflict with
others
4. A system based on cost efficiency alone would make it difficult to justify
claims form comparatively small sums, yet these cases are very important
to the parties involved, and wide access to justice is vital
5. Promoting efficiency in terms of speed can also conflict with the need for
fairness
6. Making the courts more accessible could lead to a flood of cases which
would make it impossible to provide a speedy resolution and keep costs
down
7. One example of the conflict between the different aims is that the
availability of legal aid to one party, one of the aims to widening access to
justice, can put pressure on the other side if they are funding themselves,
and so clash with the need for fairness
8. A successful legal system must aim for the best possible balance
Problems with the civil justice system before April 1999

Too Expensive
1. Lord Woolfs review found that one sides cost exceeded the amount in
dispute in over 40 per cent of cases where the claim was for under 12,500
pounds
2. The simplest cases often incurred the highest costs in proportion to the
value of the claim
3. Because of the complexity of the process, lawyers were usually needed,
making the process expensive
4. The sheer length of civil proceedings also affected the size of the bill at the
end
5. Lord Woolf found that the costs were so high that even big companies
were wary, with some preferring to fight cases in New York

Delays
1. The Civil Justice Review observed that the time between the incident
giving rise to the claim and the trial could be up to three years for the
county courts and five for the High Court
2. Time limits were laid down for every stage of an action but both lawyers
and the courts disregarded them
3. Long delays placed intolerable psychological and financial burden on
accident victims and undermined the justice of the trial, by making it
more difficult to gather evidence
4. Which was then unreliable because witnesses had to remember the
events of several years ago

Injustice
1. An out-of court settlement can have the advantage of providing a quick
end to the dispute, and reduction in costs.
2. But out-of court settlements can be unfair

The adversarial process

1. Many problems resoled from the adversarial process which encouraged
tactical manoeuvring rather than cooperation
2. It would be far simpler and cheaper for each side to state precisely what it
alleged in the pleadings, disclose the documents they held, and give the
other side copies of their witness statements
3. However attitudes did appear to be slowly changing: some of the
procedural rules on expert witnesses were changed and there was less
scope for tactical manoeuvring

Emphasis on oral evidence

1. Too much emphasis was placed on oral evidence at trial
2. In the twentieth century much of the information the judge needed could
be provided on paper and read before the trial
3. Oral evidence slowed down proceedings, adding to cost and delays
The Civil Justice System after April 1999
1. On April 1999 new Civil Procedure Rules and accompanying Practice
Directions came into forced
2. It constituted a fundamental reform in the civil justice system,
introducing the main recommendations of Lord Woolf in his final report,
Access to Justice
3. The reforms aim to eliminate unnecessary cost, delay and complexity in
the civil justice system
4. Lord Woolf suggested that the reforms should lead to a reduction in legal
bills by as much as 75 per cent, though it might also mean some lawyers
would lose their livelihoods
5. The ultimate goal is to change fundamentally the litigation culture
6. The overriding objective is that the rules should enable to deal with cases
justly
7. This objective prevails over all other rules in case of a conflict
8. The parties and their legal representatives are expected to assist the
judges in achieving this objective
9. The emphasis of the new rules is on avoiding litigation through pre-trial
settlements
10. Litigation is to be viewed as a last resort, with the court having a
continuing obligation to encourage and facilitate settlement
11. Lord Woolf had observed that it was strange that the old rules had been
mainly directed towards preparation for trial
12. Thus the new rules put a greater emphasis on preparing cases for
settlement rather than a trail

Civil Procedure Rules

1. The new Civil Procedure Rules are simpler than their predecessors,
providing a broad framework of general application rather than detailed
rules covering every contingency
2. There has been an attempt to write the rules in plain English, replacing
the old fashioned terminology with more accessible terms
3. Lord Woolf hoped that the change in language would help to support a
change in attitude, away from a legalistic, technical interpretation of
words designed to give one party an advantage over their opponent,
towards an attitude which was open and fair according to the overriding
objective of the new rules
4. While the new rules introduce some radical changes, they also inherit
much from the old system
5. Almost all proceedings start with the same document called a claim form
6. This replaces the writ of the High Court and summons for the county
court and other specialist documents
7. The procedure for starting an action is thus undoubtedly simpler than
under the old system
8. The emphasis of the new procedural rules is to encourage an early
settlement
 9. A MORI poll of 100 solicitors found that 76 per cent of solicitors believed
that the reforms had increased the chances of early settlement

Pre-action protocols
1. 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
2. Pre-action protocols are a major innovation and aim to encourage:
a. More pre-action contact between the parties
b. An earlier an fuller exchange of information
c. Improved pre-action investigation
d. A settlement before proceedings have commenced
3. They strive to achieve this through establishing a timetable for the
exchange of information by setting standards for the content of
correspondence, providing schedules of documents that should be
disclosed along with a mechanism for agreeing on a single joint expert
4. The pre-action protocols seek to encourage a culture of openness
between the parties
5. Pre-action protocols should also enable proceedings to run to timetable,
and efficiently, if litigation proves to be necessary
6. Compliance with a pre-action protocol 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

Alternative Dispute Resolution

1. There is a general statement in the new rules to adopt active case
management through encouraging parties to use alternative dispute
resolution procedure, and facilitating the use of that procedure
2. The parties will have to show that the genuinely attempted to resolve
their dispute through ADR and have not just paid lip service to the deal, as
has been a tendency in the past.

Case management
1. This is the most significant innovation of the 1999 reforms
2. Case management mean that the court will be active manager of the
litigation
3. The main aim of this approach is to bring cases to trial quickly and
efficiently
4. Traditionally, it has been left to the parties and their lawyers to manage
the cases
5. The new rules firmly place the management of a case in the hands of the
judges
6. The judges are given considerable discretion in the exercise of their case
management
7. Lord Woolf sees this change as allowing the legal professions to fulfil their
adversarial functions in a more controlled environment
Disclosure
1. Before the 1999 reforms, disclosure was known as discovery
2. The procedure used to involve each party providing the other with a list
of all the documents which the had in relation to the action
3. The parties could then ask to see some or all of this material
4. The process could be time-consuming and costly
5. Lord Woolf recommended that disclosure should generally be limited to
documents which were readily available and which to a material extent
adversely affected or supported a partys case
6. This change would have altered significantly the disclosure process and
risked going against the philosophy of openness between the parties
generally advocated by Lord Wool
7. The new civil procedure rules are actually very similar to the old rules
8. These require the disclosure of documents on which they rely or which
adversely affected or supported a partys case
9. It is not necessary for this impact to be a material extent
10. As under the old rules additional disclosure will be ordered where it is
necessary in order to dispose fairly of the claim or save costs

Sanctions
1. Under the old system there was a basic principle that the loser paid the
winners costs
2. Although this principle still exists under the new system, it is no treated
only as a starting point which the court can readily depart from
3. Where a party has not complied with court directions, particularly as to
time, they can be penalised by being ordered to pay heavier costs, or by
losing the right to have some or all their costs paid

Court Fees
1. Court fees have increased significantly over the last two decades
2. The aim is that civil courts should be self-financing and managed
according to business principles
3. The increased court fees have been criticised on the ground that they will
deter many lower income households from pursuing reasonable claims
for justice
4. The civil watchdog, the Civil Justice Council, has called upon the
Government to abandon its policy of making litigants pay almost the full
cost of the civil courts through fees

Standards
1. A pilot simulation carried out by civil litigators to predict the impact of
the Woolf reforms on the civil justice system was not encouraging:
2. Pressures on practitioners in terms of both time and costs might lead to
corner-cutting, devolution of cases to less experienced fee earners,
insufficient time for proper investigation and the incurring of
irrecoverable costs
3. Solicitors might be secretive during earl stages of the litigation so as to
avoid client criticism and potential negligence claims; and be reluctant to
tell a client about the weakness of a case
Enforcement
1. Research carried out by Professor John Baldwin of Birmingham
concluded that the difficulties with enforcing civil judgements were
leaving many claimants disillusioned with the legal system
2. Provisions in the Tribunals, Courts and Enforcement Act 2007 have tried
to improve this

Out-of-court settlements
1. The judicial statistics show that there has been a significant drop in the
number of cases reaching the courts since the Woolf reforms were
introduced
2. In 1995 over 150,000 claims were commenced in the High Court
3. By 2007 the number had fallen to 64,000
4. In 1998 the number of claims issued nationally was over 2,200,000 but by
2005 the number of annual claims had fallen to less than 1,900,000
5. Reforms put considerable emphasis on the use of out-of-court
settlements, which can then have the advantage of providing a quick end
to the dispute, and a reduction in costs
6. The high number of out-of-court settlements crates injustice b/c the
parties usually hold very unequal bargaining positions
7. 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

Professor Zanders concerns

Professor Zander (1998) a leading academic felt that the reforms were
fundamentally flawed rather than prone to temporary hiccups:

The Causes of delay

1. Lord Woolfs view was that the chief cause of delay was the way the
adversarial system was played by lawyers
2. Zander criticised this analysis pointing out that it is only supported by
unsubstantiated opinion rather than real evidence
3. Despite the fact that it forms the bases for most of the subsequent
proposals
4. By contrast zander has drawn attention to research carried out for the
Lord Chancellors department in 1994 into the causes of delay
5. It identified seven causes: the type o case; the parties; the judiciary; the
court procedures; court administration; the lawyers; and external factors
such as the difficulty of getting experts reports
6. Of these seven factors, the last two factors were felt to the be the most
significant
7. Clearly, if Lord Woolf has wrongly diagnosed the causes of delay it is
unlikely that the reforms will resolve these problems
8. Judicial statistics published in 2002 showed that time taken between
issue and trial has gone up in the High Court but delays have been
reduced in the county court
 Case management
1. Zander feels that the court management is appropriate for only a minority
of cases and that they key is to identify these
2. Judges od not have the time, skills or inclination to undertake the task of
case management
3. The court does not know enough about the workings of a solicitors office
to be able to set appropriate timetables
4. Case management led to an approximate 20-hour increase in lawyer work
hours overall
5. The Rand Report found that case management by generating more work
for lawyers, tended to increase rather than reduce costs

Sanctions
1. Procedural timetables for the fast track are according to Professor Zander
doomed to failure b/c a huge proportion of firms, for a range of reasons
will fail to keep to the prescribed timetables
2. If sanctions are imposed that are disproportionate and therefore unjust,
will cause injustice to the clients for the failings of lawyers
3. If the court does not exercise its power temperately and judiciously then,
in its eagerness to dispose of litigation, it will actually generate more
litigation.

Further reforms could be made, including:

1. The Coalition Govt. has issued a consultation paper entitled Solving

Disputes in the County Court. This paper considers extending the
automated traffic portal to include:
o Personal injury cases involving medical negligence, employers liability
and public liability worth up to 50,000 pounds
o Cases would be carried out on a fixed cost basis
2. Integration
o A proposal was considered by the Civil Justice Review, which pointed
out that the two-court system was inflexible, making it difficult to
make rational allocations of judges and administrators time between
the different courts
o Consequently some courts have much longer delays than others
o In a unified court, all cases would start in the same way and allocated
different judges based on their complexity
3. Changed Court Jurisdiction
o Cases tried in the County Court are cheaper than the High Court and a
consultation paper, Focusing Judicial Resources Appropriately,
proposed that all civil and family cases should begin at the lowest
appropriate level
o Unless lawyers can argue that the case should be heart in the High
Court
o The Coalition government is considering increasing the jurisdiction of
the county Court to include cases worth up to 100,00 pounds
 o At the moment it is usually restricted to cases worth up to 15,000
pounds
4. An inquisitorial system
o In theory the civil justice system could move to an inquisitorial
system, which the judge would take a more investigative role and the
two parties would be required to reveal all their evidence to each
other
o The process would be speeded up as delay tactics would be less
important
o Some would suggest that the system might also be fairer since being
able to afford the bet lawyer would be less important
o Progress towards full pre-trial disclosure of evidence, and the fact that
Small Claims Court arbitrators now take a more interventionist
approach, can be seen as moves towards a more inquisitorial system