Let the legal revolution begin

Stephen Ward finds Lord Woolf confident that his list of proposed reforms will bring about a change of culture in the courtroom and will give the little man a fair chance
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The Independent Online
Lord Woolf's office in the House of Lords is surprisingly small for the command centre of a legal revolution. Every shelf and surface overflows with books and files. He is flanked by a gallery of family photographs and, with a mischievous twinkle in his eyes most of the time, it is more like meeting a don in his study than the Law Lord who is reinventing the way civil justice is administered. Nor is he anything like the conservative stereotype of a judge in his sixties.

"What I object to about the present system is that it's not a level playing field, and it's too expensive and it's too slow." Costs should be in proportion to the damages, and they seldom are. He should know, after spending two years doing little but meeting lawyers, judges, administrators and dissatisfied customers of the present system. In the past 150 years, some 60 reports have found the same but achieved little. This one seems likely to be different when it is published in July; the Lord Chancellor has already promised to implement it.

Lord Woolf says the remedies he has come up with are not quite conclusions but what he describes as "ways I think will be satisfactory and will radically improve the situation from what it is now, and which people should have the opportunity of considering and pointing out to me how they can be improved and whether or not they are practical".

The most radical proposal is his way of correcting the steep slope on the present pitch, which means the big firm can frighten the little man into settling for a poor deal by running up big costs. Lord Woolf proposes in effect to alter a basic principle of civil law, that the loser always pays the winner's costs.

"I am very anxious that the playing field for litigation should be as level as possible," he says. "There are often cases, medical negligence for example, where the plaintiff cannot afford a trial involving multiple expert witnesses duplicating the same work.

"In that sort of situation, the procedural judge would have a very significant decision to make. He would have to decide whether the plaintiff is right and the case could produce a reasonably just result in the way he proposes. The alternative would be to do it in a much more elaborate way. The judge will say to the defendant who has much more substantial means, 'If you want to do it in that more elaborate way, you've got to pay (even if you win) the difference between doing it on an affordable basis and doing it on an unaffordable basis.' "

The extra costs would not be recoverable. Lord Woolf concedes: "That would be a very real departure from our present approach to justice." But he argues there are precedents in English law - for example, if somebody wants to appeal to the House of Lords, sometimes an order is made of that sort. "I think that is something we must accept. If Legal Aid funding was ideal, everybody would be in an equal financial position. But we have to accept that this is just not on in contemporary society, with the demands it wants to make of the legal system."

Sceptics suggest other key areas of his interim report published last summer will not work. He insists his reforms are all formed from experience; he thinks observers have overstated the difficulties - for example, the need to spend vast resources on training judges to be efficient case managers, to make courts run to new, tight timetables.

"There is a big point here which I think is not understood. If the court has the power to intervene, and if it will intervene when it is necessary to make parties behave in a sensible, reasonable and proportionate manner, that message goes out and the profession will adjust its behaviour to respond to that situation. That means in many cases it will not be necessary to intervene because the parties will be sensible."

There will be costs as well as savings in the changes he proposes. "This was recognised by the Lord Chancellor and his department. There are going to be additional expenses involved in my system. If we're going to achieve the change of culture that is necessary, when cases come before the court the court has got to handle them well.

"The judge dealing with these decisions has really got to know what he is talking about. You get into a situation where cases are being dealt with by very professional lawyers with a great deal of expertise in these areas, and the courts have got to match that expertise. You only do that by training your judges and making sure you use the right judges for the right functions. That's going to be an extra expenditure by the Judicial Studies Board." That process has already begun.

But the extent of retraining needed will be much less than many fear because in practice few cases need managing. And the change of culture, the new rules, will mean the lawyers manage a lot themselves, and the task of recognising and allocating the few cases which do need management could be done by any judge.

So only a few judges will need to become the adept case managers. The suitable horses for the new difficult courses will be selected by Sir Richard Scott, new head of civil justice, working with the presiding judges. Judges will need to be given more time out of court: "That's very important. I absolutely agree the judges must be given time to prepare cases if they're going to manage them. They are not, on the whole, given that time now. We've got to persuade the court system to recognise this need. They're beginning to, but they've had considerable pressure for a long time to try to keep their courts fully occupied on every day possible and keep judges fully occupied."

Lord Woolf's suggestion of single experts appointed by the courts to replace "competing" experts on each side is another area where he feels he has been misunderstood: he suggest he has been portrayed as insisting on single experts in every case. What he actually wants is single experts where appropriate. The debate still surrounds the extent to which the parties should be compelled to use a single expert where it will clarify issues more cheaply and earlier.

"If I can make recommendations of sensible ways of starting off the litigation, so you don't get into the stupid position we often get into now, where it's only when you get long down the road that it's seen that really there isn't as much of a dispute as the parties thought."

He points out that in the context of medical negligence, a lot of the resistance to use a single expert is with regard to dealing with questions of liablility. "The issue of liability is only one of the issues. There can be a number of experts dealing with the issues of causation and quantum. If at least we can progress by using, where appropriate, single experts on quantum and causation that will in itself produce advantages. What I hope will happen is that as people get accustomed to using single experts, they won't be so frightened by it."

After two years of consultation and examination of better and worse practice elsewhere in the world, Lord Woolf has amassed as near as anyone could get to an unarguable case for what he recommends; the Lord Chancellor pledged last month to implement his report in full and spend the necessary money. His officials are already working on detailed costings. Lord Irvine, Labour's Lord Chancellor-in-waiting, is in close - if cautious - touch, too. The big question remaining is how long it will all take.

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