Discuss Woolf Reforms Effect On Civil Justice Law Essay

Discuss Woolf amends Effect On well-mannered Justice im consider issueiality EssayThis essay ordain seek to analyse the Woolf Reforms and in that consideration leave alone evaluate the oerall qualitative impact that they engage had on the Civil Justice establishment. The essay will discuss the context in which Woolf Reforms were passed, the Woolf Reforms, Impact/intention of the reforms, Objective analysis based on chiding (positives and negatives) and final examly the essay will conclude by analysing whether the Woolf Reform has real succeeded in its definitive goal of decrease apostrophize and hold water.Back accountIn 1995 in that respect was a survey carried come out by National Con summariseer Council1which beliefuate that 3 out of 4 people who argon involved in serious legal disputes were dissatisfied with the obliging justness system. It was found that of the 1,019 replyents, 77 percent believed that the system was too slow, 74 per cent verbalize that t he system was too complicated and 73 per cent said that it was unwel orgasm and outdated.2A cursory look at history reveals that Pre-Trial performance has been the able matter of numerous reputations and inquiries. Since 1968 there has been the Winn Committee3, the Cantley Committee4, the massive Civil Justice analyze 1985-19885and the Heilbron-Hodge Working beginy pronouncely set up by the meter and the Law Society6. These argon remote the purview of this Essay as the forward-looking system of Civil procedure took effect on the origination of the recommendations made by original Woolf in his June 1995 Interim Report7and his July final tale, few(prenominal) of which are entitled Access to Justice8.Senior members of juridical system keep up al slipway boldly defended the signifi elicitce of gracious evaluator and were bear on about the degradation and the problems inflicting the civil justice system9. Genn promote stated that he was aware of the sorry state o f the civil judicatures10. It was in this background of continuous criticism that the previous Conservative Government appointed cleric Woolf to carry out a far reaching review and make it the civil justice system. His inquiry is the 63rd such review in the g mavin 100 familys11. The 3 perennial problems of cost, fit and complexity curb plagued the civil justice system for ages and it was these ills that the Woolf reforms sought to redress12. Indeed, the whole ethos of civil justice is bound to fail if judicial proceeding which in itself is a dear(p) affair cannot provide quantifyly, little high-priced and simple justice.Lord Woolf precious to eliminate the defects in the civil justice system which were identified as cosmos too expensive, too slow, lacking equality between sizeable and wealthy litigants and under(a)-resourced litigants, too uncertain in terms of the length and cost of litigation, too fragmented and too adversarial13.Therefore it was in this light th at in March 1994, the Lord Chancellor set up the Woolf enquiry whereby ways of reducing delays and improving accessibility of civil proceedings, and of reducing their cost were to be found14. On 26th April 1999 New Civil execution Rules and the nonessential Practice Directions came into force. These recipes constitute the most fundamental reform of the civil justice system in the 20th century, introducing the main recommendations of Lord Woolfs final pass across. He described his suggestions as providing A bran-new landscape for civil justice for the 21st century15.Woolf Reforms- The need for reformThe whole ethos of the Woolf reforms is woven round vacateing litigation and promoting chill outment between blow upies16. While it shall be analysed in occurrence whether the some(prenominal) needed reforms fulfilled their routine or not, it can be stated in the affirmative that the Reforms were very well receive by various quarters of the legal profession17. How perpetual ly, the reforms baffle not fly criticism and one of their outspoken critics is Michael Zander.The inquiry by Woolf published its final report in 1996 and thereafter the proposals dissolvented in the Civil Procedure scrap 1997 and the Civil Procedure Rules 1998, which are the like18for the County court and High accost. It need to be clarified here that the changes sought by Woolf Reforms bear effect primarily through the Civil Procedure Act 1997 and the cardiopulmonary resuscitation 1998, although these arrest been supplemented by new practice directions and pre-action protocols19.Lord Woolf, when he began his examination of the Civil justness surgical process identified diverse problems20. His interim report of June 1995 sates that the fundamental problems facing civil justice today are cost, delay and complexity, these 3 are interrelated and stem from the uncontrolled nature of the litigation process. In particular there is no judicial responsibility for managing indiv idual fictional characters or for the overall assessment of the civil courts21. Heilbron Hodge, who called for a radical appraisal of the get down to civil litigation form all its participants, paved the way for Woolf report and accompanying reforms . It was forewarned22by Lord Woolf that without effective judicial control the adversarial process of the civil courts was likely to degenerate into an surroundings in which the litigation process is too often seen as a battlefield where no rules withstand immediate effect of which would be dis residualate expense and unpredictable delay23.Being conscious of all these problems, Lord Woolf envisaged a New ornament for Civil justice which included litigation will be avoided wheresoever possible, litigation will be less adversarial and much co operative, Litigation will be less complex, the timescale of litigation will be shorter and to a greater extent certain, the cost of litigation will be more affordable, more predictable, and mo re proportionate to the value and complexity of individual cases, parties of extra financial gist will be able to conduct litigation on a more equal footing, there will be clear lines of judicial and administrative responsibility for the civil justice system, Judges will be deployed effectively so that they can manage litigation in conformism with the new rules and protocols, the civil justice system will be antiphonal to the needs of litigants.24For paucity of space I shall be discussing the main reforms that have an immediate effect on cost and delay Pre-Action protocol, post 36, juridic guinea pig Management and ADR. These were the brainchild of Lord Woolf, in this context I will compare discriminative Statistics as regards the impact of these reforms and will too evaluate the criticisms meted out to these reforms from various quadrants. The proposed objective of all these reforms was to encourage closure, avoid litigation, encourage parties to be less adversarial, more cooperative, shave complexity of litigation, reduce delay, and reduce cost.25It is but utmost important to discuss the reforms to see whether these objectives have been met or not.Pre-action ProtocolsThe idea was pioneered by Lord Woolf and can be considered as one of the most important origins of the Woolf Reforms. Pre-action Protocols focus on the conduct of parties in the pre litigation stage which will be taken into account by the courts two during the case and in addition towards the end when the final decision regarding allotment of cost is taken. Pre-action protocols serves an effective means to this end as they are come with by the practice directions which describe their chief objective as boost exchange of primaeval and full information about the prospective film, avoiding litigation by promoting resoluteness and where litigation emerges as the termination restore, to support its businesslike centering26. It was stated by Lord Woolf in the Final report on Acc ess to Justice (1996) that Pre-action protocols are intended to build on and increase the emoluments of wee but well informed go downments27.Clearly one can say that if parties know everything before hand, it does promote a healthy environment by way of co-operation and the civil litigation process can be avoided. There have been 9 pre-action protocols produced so far covering coarse areas of practice such as individualized injury, medical negligence and accommodate28. By 2003 they also beed for construction and engineering, defamation, professional negligence and judicial review.The purpose of these protocols was to29set down pre-court procedures, encourage good communication and early closedown. but these protocols cast a duty on the claimant to give the suspect inside information of the claim and on the former(a) hand the defendant moldiness respond to these claims within a stricter period of time. The protocols state that the key documents on which the partys case wh olly rests must be disclosed at an early stage. some(prenominal) the defendant and the claimant must agree on the use of an skillful protest where relevant. If the parties fail to comply with these pre-action protocols the immediate result is penalty whereby the party at fault must pay some or all be of the proceedings.30Claims however, should not be issued until at least three months after the sign letter of claim wherein the claimant has written to the prospective defendant disclosing his claim31. military rank/impact of the protocols will be carried out in the next sectionalization but it should be mentioned here that although pre action protocols may be expensive and can lead to front loading of costs in cases which would settle without them, they might be able to prevent the unnecessary costs of egress proceedings and listing for tryout in the same cases. Another benefit that follows from the protocols could be that they might give the parties a healthy nudge towards e lection Dispute Resolution32. fiber 36 An Innovative ApproachThe Woolf Reforms instituted Part 36 which provides greater incentives for the parties to settle their differences mutually. Under Part 36 procedures exist for either party to make an state to settle their disputes and these were significantly rewrite with effect from 6th April 2007. Now a part 36 project can be made before the proceedings start as well as in the appeal proceedings. In this regard reach outor refers to the party making the offer and the Offeree is the one receiving it. Upon acceptance of an offer by the claimant a duty is cast on the defendant to pay the sum offered within 14 days, failure to do so would allow the claimant to attain judgement. Also, any pre- action offer to settle while making an allege for costs will be taken into consideration by courts. A side refusing it will be treated less generously and this normally applies to offers which are open to the other side for at least 21 days aft er the date they were made. Lord Woolf suggested that for a settlement offer to qualify as an offer under Part 36 it must be made in writing with the intention to have the consequences of part 36. As regards Defendant making the offer, a period of not less than 21 days must be specified whereby the defendants liability for claimants will be established if the offer is accepted. Under the revised Part 36 however, any offer may be withdrawn after the decease of the relevant period, as defined in Rule 36.3.1.c, without the courts permission33.Michael Zander states that when the defendant pays a sum of capital into the court account as an offer of settlement, the case would end upon acceptance of the money. However if the offer is refused by the claimant, the defendant can nonoperational increase his payment-in. Upon further refusal the case will go to tryout and the outcome will be determined by the court. If the Claimant does not recover more than the amount paid in, the court wil l order him to pay the cost of some(prenominal) sides from the date of payment-in. It would be worth mentioning Calderbank letter here because technically the system applies only to cases which concerned damages or other money claims whereas under these letters if the defendant makes an offer of settlement without prejudice save as to costs it would virtually be treated by the courts in the same way as if it was payment into court. Pre -CPR this rule 36 was applied inflexibly. Post 1999 the courts are able to mitigate the cogency of the traditional rule where the claimant was automatically ordered to pay the cost of both the sides upon failure to secure more than the amount paid in by the defendant. New rules now provide for the Claimants offer, which was considered to be a big change. For money claims Part 36 payments apply, however, where the claim is not monetary, the defendant can still make a part 36 offer (as opposed to part 36 payment) and thereafter the same basic rules sh all apply. However the courts discretion34applies. in all in all allowing the claimant to make an offer of settlement under the CPR has proved to be a welcome step35. The analysis of Part 36 will be discussed in the next section.Judicial Case Management Striking a balanceThis is the most significant innovation as it was perceived by Lord Woolf that case control by judiciary, rather then leaving the conduct of the case to the parties, will bring the cases to trial quickly and efficiently36. It can be seen that the litigants in this new system will have much less control over the pace of the case than in the past. As the case is now subject to a timetable, parties will not be able to draw out proceedings and cause delays. A positive duty is cast on the court which means37Civil Procedure Rules 1.4(1) encouraging parties to co-operate with each other in conduct of the proceedings, identifying the issues at an early stage, encouraging parties to use ADR, service of process parties to s ettle whole or part of the case. Under the CPR Cases must be assigned to 1 of the 3 penetrates small claims, fast address or multi-track, each having its own separate regime depending primarily on the financial value of claim38.Limit for small claims cases is 5,000 except for personal injury and housing cases where it is 1000. Proportionate procedure is followed where straight forward claims with a financial value of not more than 5,000 can be discrete without needing substantial pre hearing preparation or formalities of substantial trial and also without incurring large legal costs39. These procedure under small claims are controlled by district judges on knowledgeable hind end40. Cases involving amounts between 5,000-15,000 are have sext here unless they are deemed unsuitable. The fast track procedure incorporates a set timetable of no more than 30 weeks to trial, limited pre-trial procedures, trials restricted to no more than 3 hours (which was further extended to 5 hours), restrictions on oral evidence form honests and recovery of standard ameliorate costs41. Cases involving amounts exceeding the fast track limit or cases with lesser amounts which are considered complex or too important for small claims or fast track cases are dealt with here42.Evaluation of the impact of judicial case management on simplification in cost, delay and complexity will follow in the next section.ADR, though not part of the traditional Court system, has been brought in connection through the CPR. Lord Woolf in his Final Report urged that people should be told and encouraged to resort to a growing number of grievance procedures, or the ADR before taking up legal proceedings. These ADR feature prominently in the rules and CPR 1.4(1)43states that the court must further the overriding objective by actively managing cases. However, Lord Woolf commented that ADR cannot be imposed compulsorily on parties at dispute in civil litigation44. There are no complex court procedures t o be adhered to while using ADR and also it saves a lot of time and avoids ever escalating litigation costs.Experts evidence was another area with which Lord Woolf was concerned. It was contended by him that expert evidence was a major(ip) cause because of which excessive expense, delay (in some cases) and complexity increased. He wanted to do away with the system where both the parties could appoint their own experts, rather he envisaged a wholeness expert who would owe his allegiance to the court rather than to the parties. Given the criticism of his proposal he admitted that though a significant shift towards single experts is not immediately possible, nevertheless it was possible to initiate a shift in that direction45.Impact/Evaluation of the ReformsBefore evaluating the reforms it may be stated in the affirmative that the Overriding Objective of the new CPR was to alter the courts to deal justly with the cases. CPR rule 1.1(1) reads These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly46.The combined effect of the major reforms was to avoid parties going to litigation and to promote settlement. This merit analysis based on empirical selective information wherein the major focus is to evaluate reduction in cost and delay. too soon evidence reveals success on the part of these radical changes as, there was 25 % reduction in the number of cases issued in the county courts in May disdainful 1999 which in comparison to the same period in the previous year was much less. This further fell to 23 % by the end of January 2000. Lord Phillip stated that the reforms have proved to be effective in changing the whole ethos of litigation but litigation itself is still expensive. It was commented by Gary spanker et al that overall reforms can be seen as a joyful step in the right direction as larger proportion of society is able to achieve greater access to justice especially when the issues at dispute are relatively small and can be dealt with quickly and cheaply in the small claims track. However, the reforms do not carte du jour that well where complex commercial disputes are concerned.47As a result of the reforms many positive changes have occurred, the culture has become less adversarial, there is better exchange of information between the parties before the start of litigation and settlement now focuses on the substantive issues in the case48. card on table culture, as it can be called, is a major itemor in the lead to settlement. Communication and exchange of information at an early stage always help49. Furthermore, claimant offers under Part 36 were praised as claimants could now obtain a response from the defendant and defendants also benefitted from them as they could set upper limits to the bargaining. Protocols, by focussing on formulating clear ground rules on the basis of which claims are formulated and responded to, encouraged parties to focus their minds on th e key issues at an early stage50. File survey undertaken by Goreily et al revealed that median time in case of medical report to settlement had fallen from 170 days pre Woolf to 123 days post-Woolf, thereby reflecting that settlement has become quicker51.In case of large claims which were subject to court timetables, solicitors thought the speed has become quicker. As regards cost it was acknowledged that costs increased because of front-loading as now more work is required to be done during the initial stages52. Evidence regarding protocols suggested that it had some impact in reducing costs as earlier exchange of information could lead to speedier settlements because both sides become aware of the issues much sooner. Case management evaluation however, true a mixed response. Experience in relation to High Court Masters in London was perceived as positive and leading to a greater incentive to reach agreement before hearing. However, outside London the experiences were not that pos itive53.Judicial statistics reveal that the number of claims have fallen to less than 1,90,000 in 2005 as compared to 2,20,000 in 1998. All this has happened since the coming into force of the Woolf reforms, though favourable economic climate may also account for this54. Cases have diverted from being litigated in the courts as a result of the use of pre-action protocols and claimant offers under part 36 which encourage pre-trial settlements, causative effect being that only 8% of cases which are listed for trial settle during the course of trial and 70% settle much earlier. This is suggestive of the fact that the reforms have been a positive step towards out-of-court settlements which have the advantage of providing a quick/speedy end to the dispute coupled with a reduction in costs55. First evaluation of the new Civil Procedure Rules by the Government56indicated the overall benefits of reforms whereby it was stated that cases are settling much earlier and not at the courts doorste p. Litigation is regarded as the last resort by attorneys and clients who now make greater use of ADR. Pre-action protocols were believed to be a success. All these findings are further supported by the latest explore57into the civil justice system58.A major official teaching published by the institute of Civil Justice at the Rand fraternity in California (Kakalik et al, 1996) looked into the effect of American Civil Justice Reform Act 1990 based on a survey of 10,000 cases. And found that early use of Judicial case management can yield reductions of one and a half or 2 months to resolve cases that would otherwise last at least 9 months. Discovery timetables further reduce time to disposition and also the number of hours spent by a lawyer working on the case. However one drawback is that case management will ultimately lead to an approximately 20 hour increase in lawyers work overall59.Only 2 proper research studies on the impact of Woolf reforms have been there so far. The firs t one was carried out for the Civil Justice council and the Law Society (Goreily et al.)60on pre -action behaviour. The second for discussion section of constitutional affairs by Professors Peysner and Seneviratne61dealt with the case management62. It was contended on the basis of this second research that protocols generate co-operation, and help prepare cases in a organised way and also discussed widespread employment of single joint experts and that days of hired guns are over.63.It is important here to mention the benefits accruing as a result of the Woolf Reforms which have been validated from a variety of sources64 shade seems to be less adversarial which reflects a better future, Pre action protocols have received laudable applause, Part 36 offers and payments seem to promote healthy settlement, single joint experts seem to work better in contrast to views of critics.Judicial Statistics reveal that average waiting time in county courts from issue of claim to trial has reduce d form 85 weeks in 1998 to 52 weeks in 200565. Analysing Statistics from Department of constitutional affairs, Reynolds Porter Chamberlin (RPC) a large city law firm found that in the first year of the reforms there was a 41.3 % drop in cases being litigated and in the following 5 years(in 2005) it further declined to a drop of 1.7%66. District Judge Terence John being skeptical however, stated that the reforms have changed the civil legal world for better and are here to stay. He further observed that 70 % of the claims are being dealt through the small claims track and 20 % through the fast track all this makes recourse to justice realistic67. Also Judge Charles Harris QC commented, trials are held pretty briskly as a result of case management which restricts incompetent litigators to prolong the case.68CriticismA major criticism of the Woolf reforms was attach by Zander who opined that there is immense pressure69on parties to enter settlement once the case begins. Empirical evi dence suggests that it is not necessary that pre-trial hearing will reduce cost and delay70. Further report by T. Goreily et al suggests that overall time before and after reforms have remained the same71. (However it may be stated, further empirical data on delay as a result of reforms a