A Trojan horse with a snag

James Burnett-Hitchcock assesses the second part of Lord Woolf's report on how to improve civil justice

The second and final volume of Lord Woolf's report Access to Justice has kept all those concerned with litigation busy reading since its publication last Friday. It proposes remedies for the most notorious ills of our civil litigation system - inaccessibility, the appalling delay in getting cases to trial, the manic paper-chase quaintly termed "discovery of documents" and the gargantuan sums consumed by that dripping roast of the legal world, the multi-party action, to name but a few. Not a penny in damages was ever paid to any plaintiff in the notorious Benzodiazepine litigation, though several thousand legally aided hopefuls went to war against the drug's manufacturers. By the time a truce was called the Legal Aid Board had footed lawyers' bills totalling no less than pounds 35m. Never again, the LAB said.

Lord Woolf's team have interviewed suppliers and consumers of legal services, lords justices of appeal and legally aided litigants the length and breadth of the country. "We cannot work out where he gets the energy from," Lord Woolf's right-hand woman, Amanda Finlay, has been heard to gasp.

The result is 580 pages of the lean and most lucid prescriptions, proposals, remedies and suggestions.

Some examples:

Division of cases into small claims/fast-track/multi-track according to size, with appropriate procedure for each;

Strictly limited costs for small claims/fast-track cases;

Hands-on case-management by judges, timetables set by court not parties;

Reduction in complexity and formality - public at less of a disadvantage to lawyers on other side;

Emphasis on resolving disputes without going to court - penalties for unreasonable refusal to settle;

Greater use of information technology, especially by judges;

Less adversarial and more co-operative attitudes and procedures.

But for one snag, this package might deliver dividends all round. The fast-track system should help the millions of ordinary citizens who, for example, while desperate for redress against a rogue builder, neither qualify for legal aid nor dare risk litigating at their own expense for fear of losing their case and being ordered to pay their opponents' costs. Lord Woolf's fast track offers the prospect of a speedy procedure and a fixed limit on costs payable to a winning opponent for claims from pounds 3,000 to pounds 10,000, and a small claims arbitration procedure with minimal costs payable to your opponent, win, lose or draw, for claims below pounds 3,000. The claimant knows the risks before starting, AND knows how long the case will take.

Again, the proposals for group actions would drastically curtail the number of lawyers permitted to feature in a multi-party action, with great benefit to the public purse.

In future the judge will manage the overall conduct of a case, not simply fall in with the lawyers' timetable. Perhaps most significant in the long run, by making litigants and their lawyers consider alternative ways of resolving disputes and use them, Lord Woolf prescribes a sea change in our legal culture. If he succeeds, the court will truly be the last resort, and one which most litigants will never reach.

So what is the snag? Just this. To achieve fundamental change throughout the legal profession - and, make no mistake, that is what Lord Woolf proposes - costs money. It costs to re-train judges and court officials. It costs to install state-of-the-art computer systems in place of the present Dickensian administration. Above all, it costs to re-organise the courts themselves, their resourcing and their rules of procedure - indeed, virtually every piece of paper or form they use. And lawyers use a lot of forms. But the last thing John Major's government needs right now is a fat new bill for overhauling the country's legal system.

At which point, a little history comes in handy. When Lord Woolf began his task, his declared intention was to produce, by spring 1996, a unified rule book for civil litigation.

And last Friday there appeared not only Access to Justice Part II - that is, the report itself - but also a brand new draft set of rules to cover both High Court and County Court. The rules are for consultation. And they will put into effect some of the most vital procedural changes called for by the report. Best of all, they are what is known as "delegated legislation". That is, there need be no debate in the House, no interminable "committee stages" - indeed no Act of Parliament is required to bring them in. For the Lord Chancellor has the authority, ex officio, to decree that they shall apply in place of the existing rules, as and when he sees fit. Let the pundits shout themselves hoarse - and quite a few will - over what they regard as the outrageous proposals included in the report. They, like the Trojans before them, will be shouting in the wrong direction. The horse is already within the walls.

James Burnett-Hitchcock is a senior litigation partner with Cameron Markby Hewitt

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