Foxing Woolf

Efforts to put radical civil justice reforms into practice are being hampered by a lack of co-ordination, writes James Burnett-Hitchcock
Lord Mackay makes it clear in his strategy document, "The Way Forward", that he intends Lord Woolf's main proposals to reform civil justice to be in place by autumn 1998. But battle rages over the more innovative Civil Procedure Rules ("The devil is in the detail," say the mandarins), neatly diverting attention from a more important question: who will co-ordinate the task of getting the show on the road? How, if at all, will the experience of the judiciary, the consumer and the practitioner be harnessed to ensure that Lord Woolf's great vision is effectively realised?

Lord Woolf's recommendation is a Civil Justice Council. This should comprise representatives of all four interest groups: judges, civil servants (ie, the Lord Chancellor's Department and the Court Service), practitioners (barristers and solicitors) and consumers. Sadly, while the need for such a partnership is acknowledged, the Lord Chancellor is "not yet satisfied" that such a body is appropriate. Yet no alternative is proposed. That this creates a worrying vacuum, and one that may yet prove fatal, is apparent from a brief consideration of what is involved in implementing Woolf.

Take the Civil Procedure Rules. They first appeared on 26 July. Drafted by a non-practitioner, they are intended, in perhaps 260 pages, to replace 6,329 pages of the two current Rule Books - one for the High Court, the other for the County Court. "Beautifully written and very clear," a High Court Master recently remarked, adding, with a sigh, "but in many respects wholly impracticable."

The rules are of course only for consultation at this stage. Common sense demands that the draftsman take advantage of the judges' and practitioners' experience. But at the moment there is no mechanism to articulate those voices - and the consultation period expired on 29 November.

Such a vacuum does not remain unfilled for long. For those in a position to seize the initiative, the absence of any co-ordinating authority is a golden opportunity. "Woolfish" Practice Directions, pilot schemes and even Court of Appeal decisions are appearing. Such enthusiasm for procedural change would gratify any reformer. More's the pity, then, that these sallies do not follow a recognisable plan. Instead, with the R&D stage still incomplete, the product is out in the marketplace.

The Lord Chancellor has stopped short of what might have been a terrific "first". Historically, barristers and solicitors have been trained by separate bodies, the Bar Council and the Law Society. For judges, there is the Judicial Studies Board. (The fact that the law is the same for each is of course neither here nor there.)

We now face a new order. Control of proceedings is to pass from solicitors to judges; case management techniques are to be introduced; costs and timing are to be estimated at all stages of a major law suit, and the courts will, in theory, track the progress of litigation to ensure compliance with time limits.

An obvious commercial approach would be first to design the new system, then draft the rules etc, and proceed to consultation. Next would come training and selective piloting to iron out bugs. Sadly, this is not the way things are going. It seems that the Judicial Studies Board - with no experience of case management - is devising case management training for judges without drawing on the experience of solicitors, let alone concerning itself with their training. Surely a unified training scheme for all the disciplines involved would improve communications between solicitor, barrister and judge, and improve their service to the consumer?

And so to IT - crucial to Lord Woolf's proposals: he who owns the IT strategy is master of the game. Right now, that means the Lord Chancellor's Department - or Electronic Data Systems Ltd which, on 8 October, won a PFI contract from the Court Service to introduce CASEMAN to the County Court in 1997. This, it is said, will "provide a strong platform for future IT development in support of the Woolf package".

The Lord Chancellor has indicated that he intends to consult with practitioners on future IT systems. It is like being promised a damn good trial - with the carpenters' hammers ringing in your ears as they knock up the gallows outside.

It comes down to this: will the Lord Chancellor's Department design and run the court system, with judges and practitioners making the best of it and the consumers coming a poor third? Or will we see a true partnership between the LCD, the judiciary, the practitioner and the consumer - the obvious way, some would say, to improve the civil justice system?

Lord Woolf perceived a Civil Justice Council as the ideal way to bring the partners together. If that is not to be, and if no viable substitute is proposed, his vision may yet fade. Because to achieve real improvement, despite the much-publicised cash constraints, requires clever control and management.

Sir Richard Scott, of course, is the new Head of Civil Justice. What will his answer be?

The writer is a senior litigation partner with Cameron Markby Hewitt.