Law: Get set for the big bang
Fast-track civil justice is almost with us, ready or not. And there are fears that some lawyers are not.
Cahal Milmo is the chief reporter of The Independent and has been with the paper since 2000. He was born in London and previously worked at the Press Association news agency. He has reported on assignment at home and abroad, including Rwanda, Sudan and Burkina Faso, the phone hacking scandal and the London Olympics. In his spare time he is a keen runner and cyclist, and keeps an allotment.
Thursday 28 January 1999
And lawyers who have yet to get to grips with the radical changes that will come into force in the civil courts on 26 April should not expect a period of grace from judges. Judge Paul Collins, director of the Judicial Studies Board, has been masterminding the training of judges in the Access to Justice reforms first proposed by Lord Woolf in 1996. Judge Collins says that the 800 full-time judges would be ready for the start, although the "forced" timetable for training means that the seminars for the 1,600 part-time judges will not be completed until June.
But there is a consensus among judges that as the reforms become law on 26 April, they will have to be put into effect from that date. Judge Collins says: "We cannot start off on the basis that judges will say: `We will allow you a running-in period.' Some judges would take a strict view, and some judges a lax view of how long that should be. That would mean different standards would be applied in different parts of the country and that would be unacceptable. However, judges will not be looking for conflict with the legal profession. In individual cases, judges will use their discretion to prevent injustices being caused."
The reforms are designed to cut costs and delays through a unified set of court procedures. Judges will be responsible for managing cases and setting timetables for hearings. Cases will be assigned to one of three "tracks" depending on the size of the claim, including a fast track for the bulk of claims between pounds 5,000 and pounds 15,000, which will be limited to a one-day trial. There will also be pressure to mediate rather than litigate.
The Lord Chancellor decided last year to take the "big bang" approach to implementing the reforms, although the information technology needed to run the new system would not be ready until at least the year 2000, and senior legal figures were warning that the 26 April date was "too soon".
The rules, practice guidance and pre-action protocols were finally published on the Lord Chancellor's Department web site on the Internet last week. The printed version is published tomorrow by the Stationery Office at pounds 250. Conferences, seminars and workshops are being held around the country. But how prepared the legal profession and their clients are - whether big corporations, insurance companies or individuals - is open to question.
Harriet Kimbell is a member of the Rules Committee which is chaired by Lord Woolf, the architect of the reforms. She is running 44 seminars between now and 25 March for some of the top 100 law firms in England and Wales.
"What alarms me somewhat is what the other firms are doing. Some firms have really grasped the nettle and are very enthusiastic about the reforms - while others are dead silent," she says.
For Tom Custance, a litigation partner with City law firm Herbert Smith, the emphasis now is on preparing clients for the changes. The firm held a seminar this week for more than 200 representatives of their clients, at which Lord Musgill outlined the impact of the changes. The firm is also offering individual clients workshops to take them through the aspects of the reforms that will most affect them.
"There has been a view that the Woolf reforms are all about small disputes and don't affect the big players," says Custance. That is not true. A big company may not bring much litigation but, when on the receiving end of claims, they should be aware of what is happening at both ends.
"I think some clients are saying: `Let's wait and see what happens.' But the message from the courts is: "This is happening on 26 April and don't expect any leniency." But he adds that the powers that be have also recognised that there is scope for the legal profession to exploit inconsistencies in the new system, and have appealed to them to work in partnership with the courts.
Ms Kimbell advises that solicitors should keep detailed notes of any difficulties that they come up against after the reforms come in.
"If things do not work at the coal face, then they will have to be changed. The rules are not writ in stone and we will look at them again at the end of the year to see how they are working. Our immediate task will be looking at areas we haven't touched yet - such as enforcement and appeals."
For David Bacon, one of five partners with Northampton solicitors Borneo Martell, the prospect of Woolf on the horizon has already prompted a more open approach from some insurers and their lawyers over the last few months.
He says: "Come April, I suspect that those who are bang up-to-date may try to catch others on the hop, but there may also be some reluctance to start the whole process until people see how the land lies.
In the area of personal injury claims, Ian Walker, president of the Association of Personal Injury Lawyers, says that solicitors will have to be able to show that they have "bought into" the letter and spirit of the new rules.
"We know that we have got to accept earlier and wider disclosure of information, co-operation with the defendants over expert evidence and investigations, and that we must make overt and serious attempts to negotiate settlement of claims at all stages of the procedure. We need to think about whether, on a case-by-case basis or as part of our firm's strategy, we should start to operate within that new concept now, anticipating the world that is to come."
If lawyers find the reforms daunting, how will they affect the lay person, particularly as tighter controls on legal aid may lead to more people representing themselves.
According to Ms Kimbell: "The new rules are in plain English, without a word of Latin. An intelligent person should be able to wade through them, although their sheer size makes them intimidating.
"But it is an overriding objective of the reforms that judges should try to even out any imbalances between the parties at every stage of a case. This should help litigants in person, although I am not convinced the county courts will necessarily have the resources to deal with them."
Marlene Winfield, senior policy officer at the National Consumer Council, says that the reforms could be a boon for consumers with their emphasis on alternatives to litigation, the narrowing of issues, and judges ensuring playing fields between parties. However, she does have misgivings.
"We have some concerns that there has not been a coherent strategy for informing the public about the new procedures," she says. "Litigants in person could find themselves on the fast track with very fast moving timetables and heavy sanctions if steps are missed. It is right to keep a case moving, but that has to be based on people knowing what is going on."
For solicitor Tom Custance, the question whether or not the reforms will work will depend on the resources available to the courts, the calibre of the procedural judges and the extent to which the legal profession and their clients want to co-operate.
"But, like it or loathe it, they are going to happen and we are going to have to make the best of it."
Lay people who are likely to be involved in litigation will also be affected by the introduction of fast-track civil justice.
l Familiarise yourself with the Rules now. Anyone making an application now for a half- or full-day hearing will probably be given a date after 26 April, so documents must be prepared under the new rules.
l Under the current rules, if you win, for example, two out of three issues at trial, the judge generally awards full costs. Under the new rules, you will only be awarded two-thirds. Although the new rules say that nothing allowed on costs now will be disallowed after 26 April, there is a precedent for costs being limited in that way and lawyers may find that they are only allowed two-thirds of their pre-April costs despite expecting full costs.
l Clients need to understand the significance of the new statements of truth which will accompany any claim, to decide who will sign them, and need to know what that signature will mean. They also need to understand the new duty of disclosure and the need to ensure searches for relevant material and information are done properly.
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