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Published: Fri, 02 Feb 2018
Common law reasoning and institutions
Common Law Reasoning And Institutions (CLRI)
‘This is the Court of Chancery… which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practitioners who would not give – who does not often give – the warning, “Suffer any wrong that can be done you, rather than come here”.’ (Charles Dickens, Bleak House, 1853, Penguin Classics 1971: 51)
To what extent, if any, does this warning hold true today in the civil justice process?
I humbly submit that the warning in the extract above from Charles Dickens satire ‘Bleak House’ does not hold true in today’s civil justice process.
The main objective of the civil justice process is to ensure that there is no miscarriage of justice and its courts are easily accessible to the public; both the rich and the poor. Access to justice is a fundamental right in society. It is the primary duties of the courts to provide and foster it. It also works towards retaining a fair and effective justice system. How far that system is fair and effective is the key to my explanation in this research paper.
There have been several criticisms of the civil justice process over the years. The main problems identified were the ever increasing cost, delays and its complexities.
The lengthy procedures in the settlement of a civil suit have proven to be very costly for some people and there is no legal aid provided to litigants making a civil claim. At the end of the trial some of these parties may have to incur more costs for the cases being heard in court than their actual claim. This all due to the adversarial nature of the civil justice system in which the environment of a litigation process is like a battlefield where there are no rules thus leading to disproportionate and excessive cost and undesirable delays.
These deficiencies have led to cases being piled up and over time leading to a backlog of cases. And such eventualities are the result of the resistance to change on the part of those still in the civil justice system i.e. the judges, lawyers, court staff and last but certainly not the least, the government. They seem to be in the comfort zone and rather remain status quo than have to adapt to new changes.
Another flaw to the system is the structure of the courts in the civil justice system; it is a little too complex for any layman. They do not understand the processes and hence it is difficult for any individual to have any confidence in coming forward to lodge their complaints.
All these problems faced by the civil justice system have resulted in poor access to justice. Several committees were initiated to overcome these problems and were seen to have addressed some of the problems but not all.
In 1994, the Lord Chancellor commissioned Lord Woolf to review the civil justice process and recommend changes. Lord Woolf in his initial report ‘Access to Justice in 1995 identified the same problems that have plagued the civil justice system time and again i.e. cost timeliness and complexities. His main concern was the nature of the litigation process in terms of its poor management and recommended that the responsibility should shift to the judges. There were several other changes he proposed and implemented such as a Pre Action Protocol was introduced. He was setting standards and time tables for cases to be heard in court. The judges, who are now managing the cases, will require a proper exchange of information between the parties as it makes it easier for a realistic assessment. The judges are to also encourage out of court settlement or forward the parties for an Alternative Dispute Resolution (ADR) which we will discuss in detail a little later. Those who breach such regulations sanctions will be applied for by the judges.
One more of his reforms included the classification of cases. These cases that go to courts are allocated to one of the three tracking system. The three tracks are the small claim tracks, the fast track cases and the multi track cases.
Claims under the amount of £5000 are allocated to small claims track. As for claims that are from £5000 to £15000, they fall under the fast track cases. All complex cases and those whose amount are above £15000 come under the multi track cases.
He recommended that the courts adopt this new procedure and manage the process of litigation i.e. allocate lighter case management for the fast track and heavier ones for the multi-track cases. All these changes were with the view of saving more costs and eventually time.
The introduction of Alternative Dispute Resolution (ADR) was another reform suggested by Lord Wolf. All parties seeking to make a claim were to try another avenue to settle their problems such as Mediation. The Pre action protocol mentioned earlier will enable parties to obtain sufficient information amongst each other so that an early settlement can be reached before it lands at the doors of the court room. They are only to rely on the courts as a last resort.
Lord Woolf’s introduction of his reform proposals was given a broad welcome by just about everyone. The majority of those concerned with the civil litigation business feel that the Woolf’s reforms are working out quite well. And for those who were concerned and had issues were basically positive ones. The indication from several sources feel that there is a lesser adversarial culture between parties now and it has changed for the better. Judges and court staff also agreed that the reforms have achieved its objectives in this area. Parties are more cooperative amongst each other. More parties were encouraged to pursue ADR instead of fighting out in courts. It seemed like the answer to the problems that have tarnished the image of the civil courts. Were Lord Woolf’s reforms the start of a new era for the civil justice system?
Most, if not all, commentators agreed that Lord Woolf’s vision of the new litigation landscape has been largely successful except in relation to costs incurred. Professor Dame Hazel Genn QC in her report (2005), “Solving Civil Justice Problems – What Might Be Best?” she says that there is no comprehensive evaluation to date, to a good civil justice system. Although there have been various views by different judges, members of the law fraternity and academics, they may differ with each other. Some may be for Lord Woolf’s reforms and some may feel otherwise and think that there are better ways to improve on the system. However, most still feel that the changes made by Lord Woolf’s proposals have produced fruitful results.
Michael Zander QC, on the other hand, has been on the attack of Lord Woolf’s proposed reforms and has reiterated that it is a failure and will makes things, instead significantly worse. He has been critical of Lord Woolf’s report ‘Access to Justice’. The only area that Zander feels Lord Woolf’s reforms may have benefited the civil justice system is the adversary culture. Although he feels that this is just a smaller picture to everything else, he still thinks that it is of no help to litigants.
On the issues of costs, they have gone up instead of a reduction and this was obviously not the intended result. The reason of the increase in costs is the early preparation of cases and the early exchange of information amongst the parties to the claim and by doing so; it is just a front loading of costs.
As for delays, Lord Woolf suggested allocation cases to different tracks i.e. small claims track, fast track and multi track cases. For fast track cases, a fixed date is set for trial and has indeed worked well but however, it still did not solve the problem of delays. More studies needed to be conducted to actually show that the reforms have not sped up the civil justice processes. The only study conducted by the Civil Justice Council and Law Society revealed that the delays are the still the same and further monitoring was required to actually get the real figures as to whether the reforms were answering the problems of delays or made it worse.
The issue of complexities was hardly ever made simpler. There was an increase of 550% on the number of pages in the rules set by Lord Woolf. Lord Woolf wanted to make it simpler for the general public but it turned otherwise. Prior to his reforms, there were about 391 pages of rules of procedures but since Lord Woolf designed his reforms, together with practice directions and protocols, the pages have increased to over 2301 pages just in the volume 1 of the Civil Court Practices.
Despite all the verbal attacks on the reforms, Michael Zander actually commended Lord Wolf for his assessment and reforms in a short span of time and has acknowledged the efforts put in by the latter.
It is submitted that the Woolf’s reforms has indeed made some changes to the civil justice system. It is still too premature to make a concrete judgement on the reforms brought about by Lord Woolf. After much trial and error and fine tuning, the system will evolve like how it has over the years and will cater to the needs of the general public. It is damaging to pass sweeping statements such as Lord Woolf’s reforms “will do more harm than good” (Michael Zander). It is further submitted that the civil courts today are far different than how it is being compared to Charles Dickens’s ‘Bleak House’.
Slapper G. and Kelly D. (2006) 8th Edition – The English Legal System (Routledge – Cavendish)
Holland J., Webb J. (2007) 6th Edition – Learning Legal Rules (Oxford)
Geary A., Morrison W., Jago R. (2009) – The Politics of the Common Law – Perspective, Rights, Processes, Institutions (Routledge – Cavendish)
Zander M. (2007) 10th Edition – Cases and Materials on the English Legal System (Cambridge)
Malleson K. (2007) 3rd Edition – The Legal System (Oxford)
Professor Hazel Genn, (2005), “Solving Civil Justice Problems – What Might Be Best?”
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