On the road to reform
Lord Justice Woolf is travelling the land to gather views on how access to justice can be improved. Stephen Ward reports
Wednesday 25 January 1995
Lord Justice Woolf, still perhaps sensitive about the mixed response and effectiveness of his recommendations for prison reform, mentioned them as a joking aside at the start of his seminar on ways to improve access to civil justice, held at Birmingham University last week, saying he hoped he would not be blamed for recent troubles. His experience will have taught him a lot about what is possible when recommending overdue reforms to inefficient institutions.
He has travelled some 3,000 miles to five cities, and listened to lawyers of every description. By the time he gets to his last two seminars at London University this Friday and next (27 January and 3 February) his proposals will probably be already fairly fixed in his mind.
As the discussions developed, the impression emerged that each group of interests represented - administrators, solicitors, barristers, judges, lay experts in various fields - had discussed problems among themselves often, but with each other, never.
"Refreshing, isn't it," Lord Woolf said during a break from the Birmingham leg of his roadshow. He has spent a day in each of the five provincial cities bouncing ideas off audiences of between 100 and 150. He will give the Lord Chancellor his interim findings in the spring, a year into his inquiry, and a final report next year.
It was his idea to take soundings this way. Traditionally a commission would speak to every group one by one - a barristers' chambers, lunch with a district judge or two, reading long submissions from a law society here and there - then try to steer a path between them all. He and his team have done all that as well, but these seminars seem to have got the various interest groups talking openly, and to each other. The seminars seem to have been used as a sort of tempering and testing process for the components of his reforms.
His central thesis is that justice, however excellent when it reaches the court, is inherently an injustice if its expense is out of all proportion to the issues at stake. Solicitors and barristers are still arguing against that: John McKeown of Rowley Ashworth said that putting judges in charge takes away their right to litigate their case in court. "It seems wrong for the judiciary to be able to say you can't exercise that right," he said.
Lord Woolf asked him what percentage of his cases won more in damages than their costs had been. He did not know.
Lord Woolf expanded his thesis: "I have come to the conclusion that the basic problem is the way our adversarial system operates. The courts wait for people to bring their disputes. They leave it to the parties to define what the dispute is about, and tosay when they are ready for trial. The court itself takes no active steps to impose a timetable, get cases settled, or consider whether disputes could be resolved in other ways. Cases take too long and cost more than they should."
Specifically he thought one expert witness could answer to the court, rather than having two competing. "At the moment he (an expert) seems to see his job as being able to do the best for his client."
Richard Chapman, deputy vice-president of the Birmingham Law Society, disagreed: two experts helped the court to clarify the issues, he said.
Lord Woolf had begun his researches with a trip to France: "I'm not saying an inquisitorial system is better [than an adversarial one], but it is certainly cheaper and quicker," he said. "I want to combine the best features of both."
He received both support and opposition from the debates. He will draw comfort from the fact that interest groups were not united in their views.
He throws a provocative thought to the audience; people respond: if they don't identify themselves he interrupts with a brisk "Who are you?"
Robin Day-style, he takes shows of hands on how far the audience thinks the small claims court limit might be raised from its present ceiling of £1,000 (three out of four). He bounces off the audience a suggestion that witness statements might have to include weaknesses as well as helpful material. Impossible to enforce, came the response from the floor.
Professor Ian Scott, from the university's law faculty, was provocatively irreverent. He said many solicitors sent off letters in a dispute whose sole purpose was to make sure they did not have to think about a case again for six weeks, then got back a letter which had the same purpose. Loud murmurs and nods of recognition. He described cases as not being so much settled out of court, as "chewed to death". He suggested one way of speeding things up would be for lawyers to give clients a running total ofcosts so far each week.
Richard Chapman said courts needed more funding to provide an adequate infrastructure.
Alan Lodge, a Coventry solicitor, said case management would require more and better judges, and more solicitors and barristers moving into the administration. It was a good idea, but no Lord Chancellor would pay for it.
Judge Victor Hall, a Leicester circuit judge, said the vast majority of cases he saw were not properly presented by the two parties. Judge Peter Crawford, senior circuit judge in Birmingham, went further, blaming lawyers for delays in cases before him of10-12 years.
Judge Derek Stanley, a circuit judge, advised Lord Woolf: "Go and look at any court file, you will see the pleadings buried away at the bottom, or affidavits missing. Only occasionally is there a properly documented bundle."
Bernard Shaw, chief clerk of Birmingham County Court, said nine times out of ten it was litigants' fault when cases were delayed.
Judge Michael Jones, a district judge in Birmingham, said he had experimented in the early Eighties with extending pre-trial reviews from a brief look at the papers to a 30-minute discussion involving both sides. Six cases out of ten had settled out of court. Lord Woolf mumbled to himself "very good".
John Pickering, of Irwin Mitchell solicitors of Sheffield, suggested that fixing court dates early on, with flexibility, would lead to more cases settling. Very often cases were settled as soon as a court date was reached.
Andrew Paton, of the Birmingham solicitors Pinsent and Co, expressed a refreshing realism. He said that 97 per cent of cases were settled out of court, but only when they ran out of money, or they found how much the "brief" fees were going to be. It would be much better for those cases to settle earlier, before the costs had been incurred.
Phil MacKenzie, secretary of the Worcester law society, suggested that a document summarising the case at an early stage by the plaintiff and enforceable reply from the defendant would lead to earlier settlements.
Richard Chapman advocated clarifying the legal case at an early stage, either at setting down, or close of pleadings.
Marie Andrews, of the Birmingham Settlement, a charity that advises on debt and finances, said a great number of cases were settled at the courtroom door, when nearly all the costs had been run up. Clearly agreement should be reached earlier.
Peter Wiseman, for the Birmingham law society, said: "We need to ask ourselves the difficult question: `Do we give our clients value for money?' If every £1 in damages means £1.50 going to lawyers, it's madness."
He suggested saving the volume of paper exchanged on disclosure by being more selective and photcopying far less, as had been forced on the profession when Xerox machines had been much more cumbersome and unreliable.
John Flynn, a member of the public, who had evidently had his own bad experience, said solicitors obstructed and delayed justice. "As soon as you get to a judge, things start to work in your favour."
Whatever happens on the broader canvas, there will be benefits to the detail of the way civil law works. Take an example from Birmingham. A member of the public stood up just before lunch. He asked why, if members of the public could represent themselveswhen served with a High Court writ, representatives of companies could not. Companies now were often very small, perhaps only one person. He knew of one company which had been tipped into bankruptcy by the legal costs of defending a writ.
Lord Woolf asked if anybody objected to the idea. You might have thought the solicitors would feel they had to defend their patch. They didn't, and from this small example, a piece of sensible and important procedure may well go straight into practice. Many similar examples have emerged in his travels, Lord Woolf says.
On the wider reforms, there seemed to be a consensus that what we have now is not working. After these exercises Lord Woolf will know better than anybody what the various branches feel, and will have built himself a mandate to recommend changes that are workable.
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