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Analysis Of Woolf’s Reform Of Civil Justice System

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The Civil Justice System was established to resolve disputes arising between two individuals or organizations. The civil courts play an essential role in promoting social order by resolving disputes, they also help in regulating economic activity of the state by guaranteeing the enforcement of contracts, but to what extent the civil process is efficient, has been a subject of considerable debate. If the system is not accessible by all segments of the society due to expense or delay, it leads to people being deprived access to justice. Numerous reports have been published, finding the civil process not efficient, concerning the cost of civil litigation, complication and the extent of delay. ‘Many attempts have been made to reform the civil justice system regarding speed and accessibility of civil courts, some of which were the Evershed Committee (1953), the Winn Committee (1986), and the Cantley Committee (1979). The Problematic areas of the civil justice system included the formal nature and complexity of court system, which involved strict timetables applied by judges and rules relating to costs making it difficult for lay people to understand. The Civil Justice Review of 1988 was another attempt for reform which resulted in the shift in the quantity of work from the High Court to the County court, hence had little impact. The significant reforms to the civil justice system in England and Wales were brought about by the Woolf Reforms in 1999, with the purpose of making justice more accessible. ‘In 1994, Lord Woolf set up the Woolf Inquiry to review the working of civil courts. It aimed to combat the critical issues of cost, delay and complexity. In the report ‘Access to Justice’, Lord Woolf emphasized that the essential aim of the reform was to increase efficiency, maintain access to justice and encourage mediation. His recommendations formed the framework of changes to the system which led to the enactment of the Civil Procedure Rules (CPR) (1998) that came into force in 1999. Also, legal aid for personal injury was replaced with conditional fee arrangements through the enactment of the Access to Justice Act 1999. ‘The CPR aimed at establishing a single procedural rule for the County Court and High Court. The key focus of the CPR centered around two factors, pre-action protocols and practice directions. Importantly, these rules are reviewed and updated on a regular basis. The overriding objective of the CPR is that civil courts should be able to settle cases justly and at proportionate costs. The reform was viewed in two different ways. One of them was to simplify the complexities of the system along with making it more accessible and affordable to private individuals as well as corporations. The other is the point of view of the English government that it would assist in cost saving.’

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The primary purpose of pre-action protocols was to settle cases at the earliest by improving communication between the parties. Separate pre-action protocols were designed for different areas such as personal injury, judicial review, housing and medical negligence. Before the commencement of proceedings, the court expects that the parties have exchanged necessary information regarding each other’s position; decided how to proceed, considered Alternative Dispute Resolution (ADR) to settle, to avoid litigation. The CPR helped reduce the number of claims issued, allowing the courts to deal with those that come before them. The contributing factor to this decrease is ADR, a broadly welcomed concept. ‘The constant increase in cost of litigation was found to limit access to justice; lawyers were required due to the complexities of the civil justice system, which made litigation very expensive; also costs of cases were often not proportionate to the value of the claim. Lord Woolf wanted settlements to be less adversarial and that parties should consider ADR before commencing proceedings. He wanted the courts to take the view that litigation should be a last resort. The reforms of Lord Woolf made incentives for individuals to utilize ADR. Additionally, they gave courts discretion to penalize parties in cases where there was no attempt to resolve disputes using ADR or where parties behaved unreasonably in the course of ADR. An example of this is PGF II SA v OMFS Co 1 Ltd, wherein failure to respond to an invitation to take part in ADR was held to be unreasonable and hence the court could issue cost sanctions against parties. As a result, ADR was encouraged as it saved scare judicial resources and also offered litigants a cheaper way of settling disputes in contrast to litigation. ‘An important point is that courts cannot force parties to use ADR. This is primarily because not all cases can be settled through this method and most importantly it may imply that individuals are denied the right to fair trial resulting in the breach of Article 6 ECHR (European Convention on Human Rights) as seen in the case of Halsey v Milton Keynes General NHS Trust. ‘In spite the many advantages of ADR, the concept did face some criticism. According to Professor Michael Zander, an eminent critic of the reform, the reason for the constant increase in the cost of civil litigation is due to the pre-trial settlement which resulted in the front-loading of costs. He concluded that if people became aware that in most cases this would lead to increase in costs, the reforms would not gain much support. ‘Another significant aspect of the reforms is case management under which claims are allocated into one of three tracks on the basis of its value, importance and complexity. Prof. Zander criticized this concept stating that trials still take a lot of time to be brought to court. In conclusion, the advantages of the reform outshine the disadvantages. The changes brought about by the reform have led to ‘soft’ developments in the civil justice system in areas such as the degree of cooperation and early settlement, the difficulty of making litigation cheaper shows the complication of resolving the problem of cost.

01 February 2021

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