#3662 - Procedure - Civil Procedure

Procedure

Cranston: How Law Works (2006)

Chapter V: Procedure

Lindblom – “the science of muddling through”

The Woolf Report, and the changes it has brought about to civil procedure in England and Wales, fit more a big bang than an incremental model of public policy making.

Case management in particular constitutes a radical break with the adversary nature of civil procedure.

In its implementation, Lord Woolf had argued for an early and wholesale rather than a more staged introduction of the changes. The latter was the approach ultimately adopted. Nevertheless, big bang it remained.

Aspects of the reform such as the emphasis on speed and reduced cost accorded with the sense of crisis and the need for significant change felt by leading judged, practioners and court administrators e.g. Bingham and Lightman.

Lord Woolf was able to build a coalition favouring fundamental change to address these issues. His critics were routed since they had no ready solutions to the problems and were reduced either to defending the status quo or contending that radical change was impossible.

Zander – critic.

Overall the adoption of the bulk of the Woolf proposals has seen a fundamental change in legal practice and culture in a remarkably short space of time.

Unfortunately civil justice has been a Cinderella subject and not a great deal of research has been done.

Procedural change

Zuckerman – radical argument for a more truncated form of procedure along the lines of summary judgment (1995).

Procedural reform was central to the Woolf Inquiry. The Report laid the groundwork for a new procedural code, as well as making recommendations on specific matters such as the handling of disputes before actions. The report sets out Lord Woolf’s philosophy for a new procedural code. It is incorporated in the overriding objective of the civil procedure rules. Dealing with cases justly is the lodestar, but that is defined as a matter of reaching the right results in terms of the facts and the law, but mindful that resources are not unlimited and that decisions must be reached within a reasonable time.

Ensuring cases are on an equal footing procedurally takes shape in matters such as court fees, the treatment of litigants in person and in the responsibility on the court to ensure that one side does not use procedural devices such as excessive disclosure (discovery) to browbeat the other.

The overriding objective is based on the important assumption that cases do not all need the same preparation or same lengthy trial. Procedures must be proportionate to the type of case hence the three tracks – small claims track, fast track and multi track.

Zuckerman (1999) – the greater control over the resources allocated to individual disputes has rightly been categorised as a new philosophy of distributive justice in procedure, ensuring resources are allocated fairly to litigants and would be litigants and that the allocation of resources is proportionate to the importance of each dispute.

Simplification is one theme running through the Woolf reforms. It was a reaction to the complexity in the existing procedures and substantive law. complexity in Lord Woolf’s view facilitates the aggressive tactics of lawyers which he deprecates and indeed “is considered by many to require it”. Simplification is the goal for the new rules. A primary aim of the new rules is understandability. Not only is there now a single set of rules applying to the High Court and county courts, but there is a simplification of specific procedures e.g. the number of ways of commencing an action and the plethora of initiating documents have been abolished to be replaced by the issue of a claim form.

Lord Woolf – reducing the size of the rules and the number of propositions contained in them, using simpler and clearer language and adopting a simpler drafting structure are all aimed at “enabling the rules to perform their proper function once more.”

Perhaps the most radical innovation in procedure has been the emphasis on party cooperation, a distinct break from the adversary culture. In particular this has been furthered by the introduction of pre-action protocols. As a result, court procedure now reaches back to mould behaviour before the parties have even invoked court processes. Their aim is to encourage settlement and promote a culture where litigation is a last resort. Overall the protocols require the early exchange of information about a claim. Thus C’s must send a detailed letter about a prospective claim which D’s must respond to in full within a specified period. C’s must generally hold back from litigating in the meantime. Under the protocols parties must cooperate to varying degrees on such matters such as experts, and under them there is an obligation on the parties to demonstrate a willingness to settle. There are pre-action protocols for specific areas such as personal injury, clinical negligence, housing disrepair, defamation, disease and illness, and JR. Absent a pre-action protocol in an area parties are still expected to act reasonably in exchanging information and documents at an early stage and must generally seek to settle their dispute without recourse to litigation. The protocols are guides to good practice, although the courts take breach into account in giving case management directions and making orders for costs (Carlson).

Lord Woolf has seen the problem of cost as the most serious besetting the litigation system. One aspect is that costs can be used as an instrument of war, to drain or deter an opponent.

Under the overriding objective of the CPR, the court must consider whether the likely benefits of taking a particular step justify the cost of doing so. there is also a wide power for the court to take any step or make any order for the purpose of managing a case and furthering the overriding objective.

The costs practice direction sets out steps which lawyers must take to keep clients informed about their potential liability in respect of costs and in order to assist the court in case management. Thus the court can require the parties to file cost estimates to show the likely effect on costs of making specific case management decisions. The implication is that the court can limit costs at the outset by a protective costs order so that they are proportionate to the amount involved o where a public interest is involved. This can be done through a case management decision that the costs of a party are to be limited to a certain figure, proportionate to the amount involved and reflecting whether they are C or D. In heavier litigation a costs cap may be administered by the court and be altered to reflect changed circumstances.

Costs are normally awarded on a standard, rather than an indemnity basis. Under the CPR standard basis costs are confined to items proportionately and reasonably incurred and which are proportionate and reasonable in amount. Whether the costs incurred by C’s are proportionate is to be judged in part having regard to what it is reasonably to believe they might recover at the time of the claim; with the D’s regard is to be had to the sum it was reasonable for them to believe the C might recover should the claim succeed.

If the costs are as a whole proportionate, all that is normally required is that each item should have been reasonably incurred and the cost of that particular item is reasonable. If the costs as a whole are disproportionate, the court will have to be satisfied that the work in relation to each item was necessary, and if so that the cost of that particular item is reasonable (Lownds).

Initially empirical work suggested that the goal of making costs proportionate was being missed e.g. average costs in a sample of fast track personal injury cases were nearly 70% of the damages, both prior to and immediately after the introduction of the CPR in 1999.

Habib Bank – courts are now adopting a robust approach and disallowing disproportionate costs.

Fixed costs in the fast track are another method of addressing the problem of disproportionate costs. The original intention was that costs in the fast track should be fixed; Lord Woolf was influenced by the German experience where control on litigation costs has meant that litigation is less expensive than in England.

The institute of advanced legal studies – a consensus was possible over the processing of personal injury cases so that a cost matrix for C’s and D’s could be devised. With contract cases participants gave widely differing estimates, both of the work required and the time it would take. The researches therefore concluded that it was not possible, at that stage, to estimate costs levels based on the amount of work demanded of a client’s lawyer. Instead they suggested that the amount payable by the loser to the winner should be proportionate to the value in dispute.

As a result of subsequent work by the Civil Justice Council, established as part of the Woolf reforms, fixed costs now exit for road traffic accident cases. This is a model to be extended to other litigation. Costs are fixed according to a scale based on damages recovered, rather than hours spent on advancing the claim. The scheme does not cover disbursements, liabilities such as insurance premiums or success fees, neither does it affect any contractual right of solicitors to recover costs from their client. Fixed costs are predictable costs and should therefore facilitate access to justice. Lord Hoffmann – there are also “a more rational approach than to leave the matter to individual costs judges”.

Traditionally disclosure...