On trial: fast-track litigation

John Trotter examines the practicalities of the Lord Chancellor's plans to speed up the judicial process
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The Independent Online
Last week the Court of Appeal upheld two decisions of a Commercial Court judge who had refused to strike out part of a claim and order the hearing of preliminary issues. The Court of Appeal said that these are examples of case management that must be left to judges and not interfered with unless the judge has "seriously erred or reached a manifestly unjust decision".

More and more case management decisions are going to have to be made by judges at every level in the court system under the changes recommended in the Woolf report and already taking effect in some areas. The starting point is the assumption that to improve efficiency in the courts and cut costs, the conduct of cases can no longer be safely entrusted to solicitors and must be brought under the control of a more pro-active court. Whether this premise is accepted or not (and of course there are solicitors who drag their feet and are inefficient), it is clear that this will be entirely counter-productive if case management decisions are routine appealed.

As it is, the court's resources are overstretched, from district judge to Court of Appeal, where the review body under Sir Jeffery Bowman is looking at its procedures and how to reduce its delays. This is a real priority. A survey of business clients by my own firm showed that they would ideally wish to see commercial appeals heard within six months of first instance judgment and that the present delays of well over a year are simply unacceptable for the international businesses that use our commercial courts. (It should be noted in passing that few other countries are in fact quicker from writ to final appeal and few have the flexibility that we have for really urgent matters.)

However, if London courts are to retain their pre-eminence in resolving international commercial disputes, delays will have to be reduced. On appeal, litigants will have to accept more decisions by a single judge and more paper applications (without a hearing) for leave to appeal. The option of increasing the size of the Court of Appeal has apparently been dismissed by the Lord Chancellor, not just for reasons of cost but also for fear of depleting the complement of judges in the High Court and of appointing judges before they are sufficiently experienced. (The court is very aware of its budget and has recently been told that it must be self-financing. This was in part the explanation for the recent increase in court fees - hardly an improvement in access to justice, although less prohibitive for commercial clients than individuals.)

The Court of Appeal review has said it will look at all the angles and all possible solutions. The most radical would be to do away with a two- tier appeal system altogether and to amalgamate the resources of the Court of Appeal and the House of Lords. Some might ask why we need two stages of appeal from the High Court. In several significant areas of the law - for example, reinsurance - a series of important decisions by single judges in the High Court have been overturned by the Court of Appeal - only to be reinstated months later by the House of Lords - sometimes only by a majority. Commercial clients want laws and interpretations that are fair and workable, but they also need certainty. A two-stage appellate process and conflicting decisions on appeal over a two-year period is not helpful to the industry concerned.

While appeal courts make or interpret the law, Alternative Dispute Resolution (ADR) by its nature never does, because there is never an adjudication or a binding precedent. The same is true of arbitration, unless the arbitrator's award is appealed into the court system and reported. In the last two years the courts have first recognised, and then embraced, ADR. The result is that now, on his own initiative, a Commercial Court judge may decide that a case is suitable for ADR and adjourn the court proceedings for several months while a mediation or informal trial takes place. This in part recognises the way in which mediation can bring the parties together and resolve disputes - and in part is a method of reducing the number of cases to be tried.

Only a small percentage of writs issued in the High Court ever reach a full trial. In part, some will say that this is because of the prohibitive costs of trials (including the barristers' brief fee that is payable in full even if the case is settled at the doors of the court) and the exposure to the other party's costs if he succeeds. This rule, that "costs follow the event", has long been a distinctive feature of the English system. In the United States, the absence of it means that someone starting litigation knows exactly how much he can invest in that litigation and then just walk away, without having to bear his opponent's costs. It puts an effective brake on "no win, no ice" arrangements in England, because it has to be agreed who will pay the other side's costs if the "no win, no fee" claim fails. Neither the lawyer, who is already facing the risk of no fee for his work, nor the client will want an exposure for this. The Law Society here has negotiated a policy to provide up to pounds 100,000 of cover for this exposure in certain types of case, including personal injury, which has helped the launch of the "no win, no fee" arrangements here.

At present, our conditional fee system is limited to personal injury, insolvency and civil rights cases. A speech last week by Sir Richard Scott (head of Civil Justice) said that given the lack of funds available to extend the ambit of legal aid, he foresaw the categories of case for conditional fees being extended to include claims in contract and tort (which might include professional negligence and libel), and that with it might go a modification of the costs rule, so that costs would only be awarded against the losing party to the extent that his conduct of the case had been unreasonable. This would indeed be a major change and would bring us more into line with the United States, perhaps increasing the number of speculative actions brought with no risk of paying costs if the case failed.

A final point on case management is that most High Court judges are barristers by training with no hands-on experience of the practicalities of preparing a case for trial, and the final preparations for it, with the benefit of that knowledge. Even so, a judge may find it hard to assess how long should be allowed for collating and organising many volumes of documents, preparing a schedule of all the issues or even highlighting all the relevant legal authorities. In preparation for more detailed management by the judges, a major retraining exercise is planned. Some firms have even suggested secondments for judges to busy litigation departments.

At the same time, judges and masters are going to be given less detailed guidance in the rules of court. Lord Woolf's plan is to replace the 3,000 pages of High Court Rules with a much shorter, simplified version, setting out principles and guidance but without the complex and voluminous sub- rules and glosses that have been built up over years of precedent and experience. While this aim is entirely laudable, the first draft, circulated for consultation, showed the need for a great deal of further intensive work, if the proverbial baby is not to be thrown out with the bath water. The present rules cover almost every situation that can arise in court procedure and at least have the merit of being relatively comprehensive. The danger of much shorter, less precise, rules is that different judges will be inconsistent in their approach to case management and that there will be more, not fewer, applications to the court for clarification.

This brings us back to the Court of Appeal and its unwillingness to interfere with the judge's decision. The last thing we need is a backlog of cases on procedural and case management issues filling up the Court of Appeal listsn

The author is managing partner, litigation, Lovell White Durrant.