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

Sport
world cup 2014A history of the third-place play-offs
News
Tommy Ramone performing at The Old Waldorf Nightclub in 1978 in San Francisco, California.
peopleDrummer Tommy was last surviving member of seminal band
Life and Style
Swimsuit, £245, by Agent Provocateur
fashion

Diving in at the deep end is no excuse for shirking the style stakes

Sport
The Mexico chief finally lets rip as his emotions get the better of him
world cup 2014
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
Voices
Spectators photograph the Tour de France riders as they make their way through the Yorkshire countryside
voicesHoward Jacobson: Line the streets for a cycling race? You might just as well watch a swarm of wasps
Life and Style
lifeHere's one answer to an inquisitive Reddit user's question
Life and Style
Several male celebrities have confessed to being on a diet, including, from left to right, Hugh Grant, Benedict Cumberbatch and Ryan Reynolds
...and the weight loss industry is rubbing its hands in glee
News
peopleDave Legeno, the actor who played werewolf Fenrir Greyback in the Harry Potter films, has died
Sport
Mario Balotelli, Divock Origi, Loic Remy, Wilfried Bony and Karim Benzema
transfersBony, Benzema and the other transfer targets
Sport
Yaya Touré has defended his posturing over his future at Manchester City
News
Detail of the dress made entirely of loom bands
news
Life and Style
beauty
Sport
There were mass celebrations across Argentina as the country's national team reached their first World Cup final for 24 years
transfersOne of the men to suffer cardiac arrest was 16 years old
Arts and Entertainment
Armando Iannucci, the creator of 'The Thick of It' says he has
tvArmando Iannucci to concentrate on US show Veep
News
A mugshot of Ian Watkins released by South Wales Police following his guilty pleas
peopleBandmates open up about abuse
Sport
Basketball superstar LeBron James gets into his stride for the Cleveland Cavaliers
sportNBA superstar announces decision to return to Cleveland Cavaliers
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Information Security Manager (ISO 27001, Accreditation, ITIL)

£70000 per annum: Harrington Starr: Information Security Manager (ISO 27001, A...

C# Developer (HTML5, JavaScript, ASP.NET, Mathematics, Entity)

£30000 - £45000 per annum + Benefits + Bonus: Harrington Starr: C# Developer (...

C# Integration Developer (.NET, Tibco EMS, SQL 2008/2012, XML)

£60000 - £80000 per annum + Benefits + Bonus: Harrington Starr: C# Integration...

Biztalk - outstanding opportunity

£75000 - £85000 per annum + ex bens: Deerfoot IT Resources Limited: Biztalk Te...

Day In a Page

A History of the First World War in 100 Moments: Peace without magnanimity - the summit in a railway siding that ended the fighting

A History of the First World War in 100 Moments

Peace without magnanimity - the summit in a railway siding that ended the fighting
Scottish independence: How the Commonwealth Games could swing the vote

Scottish independence: How the Commonwealth Games could swing the vote

In the final part of our series, Chris Green arrives in Glasgow - a host city struggling to keep the politics out of its celebration of sport
Out in the cold: A writer spends a night on the streets and hears the stories of the homeless

A writer spends a night on the streets

Rough sleepers - the homeless, the destitute and the drunk - exist in every city. Will Nicoll meets those whose luck has run out
Striking new stations, high-speed links and (whisper it) better services - the UK's railways are entering a new golden age

UK's railways are entering a new golden age

New stations are opening across the country and our railways appear to be entering an era not seen in Britain since the early 1950s
Conchita Wurst becomes a 'bride' on the Paris catwalk - and proves there is life after Eurovision

Conchita becomes a 'bride' on Paris catwalk

Alexander Fury salutes the Eurovision Song Contest winner's latest triumph
Pétanque World Championship in Marseilles hit by

Pétanque 'world cup' hit by death threats

This year's most acrimonious sporting event took place in France, not Brazil. How did pétanque get so passionate?
Whelks are healthy, versatile and sustainable - so why did we stop eating them in the UK?

Why did we stop eating whelks?

Whelks were the Victorian equivalent of the donor kebab and our stocks are abundant. So why do we now export them all to the Far East?
10 best women's sunglasses

In the shade: 10 best women's sunglasses

From luxury bespoke eyewear to fun festival sunnies, we round up the shades to be seen in this summer
Germany vs Argentina World Cup 2014: Lionel Messi? Javier Mascherano is key for Argentina...

World Cup final: Messi? Mascherano is key for Argentina...

No 10 is always centre of attention but Barça team-mate is just as crucial to finalists’ hopes
Siobhan-Marie O’Connor: Swimmer knows she needs Glasgow joy on road to Rio

Siobhan-Marie O’Connor: Swimmer needs Glasgow joy on road to Rio

18-year-old says this month’s Commonwealth Games are a key staging post in her career before time slips away
The true Gaza back-story that the Israelis aren’t telling this week

The true Gaza back-story that the Israelis aren’t telling this week

A future Palestine state will have no borders and be an enclave within Israel, surrounded on all sides by Israeli-held territory, says Robert Fisk
A History of the First World War in 100 Moments: The German people demand an end to the fighting

A History of the First World War in 100 Moments

The German people demand an end to the fighting
New play by Oscar Wilde's grandson reveals what the Irish wit said at his trials

New play reveals what Oscar Wilde said at trials

For a century, what Wilde actually said at his trials was a mystery. But the recent discovery of shorthand notes changed that. Now his grandson Merlin Holland has turned them into a play
Can scientists save the world's sea life from

Can scientists save our sea life?

By the end of the century, the only living things left in our oceans could be plankton and jellyfish. Alex Renton meets the scientists who are trying to turn the tide
Richard III, Trafalgar Studios, review: Martin Freeman gives highly intelligent performance

Richard III review

Martin Freeman’s psychotic monarch is big on mockery but wanting in malice