Carolyn Wilson, an Associate Solicitor in Healys’ Litigation Department, offers her view of dispute resolution a decade on from the Woolf reforms.
The 26th of April 2009 marked the 10th anniversary of the implementation of the Civil Procedure Rules 1998 (“the CPR”), attracting widespread comment as the legal profession celebrated and criticised Woolf’s revolutionary reform of our civil justice system.
The “good old days”
In the legal press, Woolf’s critics have focussed on the CPR’s failure to reduce the costs of litigation and cut delay, suggesting that the litigation system was better in the “good old days.”
In his recent article examining the impact of the Woolf reforms, freelance journalist Neil Rose mentions those civil litigators “of a certain vintage” who are “able to remember serving a writ on behalf of a plaintiff, as well as the days of pleadings, interrogatories, further and better particulars, affidavits and discovery” (Law Society Gazette, 28th May 2009). When I started practising as a civil litigation solicitor in 2002 (some 3 years after the introduction of the CPR) I sensed a certain negativity towards the new rules. It is perhaps unsurprising that the “vintage” practitioners to whom Mr Rose refers sought to resist such a fundamental change to the way in which they had been conducting litigation for so many years.
Having “grown up” with Woolf, I am not best placed to comment on the rights and wrongs of “old-style litigation.” All that I can say is that my experience of practising civil litigation over the past 7 years has been in stark contrast to the accounts I hear of an old regime consisting of late preparation of cases, point-scoring, adversarial tactics and a willingness to “fight” cases to the death with little regard for the parties’ commercial objectives.
The “cost” of litigation
There has undoubtedly been “front-loading” of costs since the Woolf reforms as a result of the early preparation of cases and exchange of information which parties are required to undertake in order to comply with the CPR’s Pre-Action Protocols. Lord Woolf’s aim to reduce costs is regarded by many as having “backfired” and steps are being taken to address the perceived problem. The promotion of access to justice at proportionate cost is one area being examined as part of Lord Justice Jackson’s fundamental review of litigation costs. In addition, the latest Commercial Court reforms attempt to reduce the amount of work and thus costs to be incurred at the pre-action stage by requiring more concise letters of claim/response to be served with only essential documents being exchanged by the parties.
One point that Woolf’s critics have failed to acknowledge fully is the significant impact of the Woolf reforms on the use of alternative dispute resolution (“ADR”). A major success of the past decade has been the greater impetus on parties and their lawyers to explore the possibility of settlement at an early stage. Pre-Action Protocols (and the new Practice Direction on Pre-Action Conduct which came into force on 6th April 2009) are aimed not only at encouraging the prompt exchange of information but at promoting an early consideration of ADR to seek to avoid litigation. In contrast to the pre-CPR regime, parties are no longer encouraged to litigate without sufficient regard to the cost consequences but are instead assisted by their lawyers to explore alternatives with litigation becoming a last resort.
Empirical studies and statistical evidence have been cited by commentators in support of their view that the CPR has failed to achieve its aims. In my view, it is misconceived to focus solely on the front-loading of costs and delay in evaluating the success of the Woolf reforms. The benefits of an early settlement are not easy to quantify and so are often overlooked. They include the huge saving in management time and lost productivity by enabling the parties to avoid protracted litigation and divert time back to continuing to run their businesses. In contrast to litigation, mediation can repair rather than destroy business relationships. The increase in the number of disputes being referred to ADR over the last ten years is a development that is to be welcomed, CEDR’s figures show that 80% of cases referred to mediation in 2008 settled.
A “cultural revolution”
In addition to an increased emphasis on the settlement of disputes, another success of the Woolf reforms is the encouragement of greater transparency and co-operation between parties and their lawyers. One aim of the reforms was to promote a less adversarial system of litigation with greater judicial intervention and an increase in the court’s case management powers.
Michael Zander QC, one of Woolf’s critics, stated “...whatever the feel-good benefits of a softer aspect to litigation practice, I find it difficult to believe that it has a significant pay-off for the parties themselves. My guess is that it mostly amounts to little more than lawyers going through the motions of appearing to act reasonably in order to avoid an adverse costs order” (New Law Journal, 13 March 2009).
Like the majority of practitioners, I am conscious of the obligation to conduct litigation reasonably so as to limit my clients’ exposure to the court’s sanctions, including adverse costs orders. The fact that such considerations are in the forefront of my mind does not detract from the benefits to my clients of operating within a less adversarial system. I cannot agree with Zander’s view that greater co-operation between lawyers does not have a “significant pay-off” for the parties. It is clearly in my clients’ best interests that I conduct their cases in a way that will achieve their objectives, facilitate the successful resolution of their disputes and ensure they have greater control over the litigation process. This includes communicating more openly with my opponents, consenting to reasonable requests, refraining from making unmeritorious/unnecessary interim applications and exploring possibilities for settlement. Such a change in the culture of litigation leads me to believe that the Woolf reforms have, at least to some extent, altered our system for the better.
Personally, I feel privileged to be practising civil litigation in the “new era” and at Healys, an entrepreneurial firm which prides itself on its ability to find innovative solutions to its clients’ problems.
