HOWZAT

In conclusion, Genn said it was time to reassert the importance of civil justice and redress the balance that was tipped towards the criminal justice system. Our aspiration, she said, should be to have a modern, efficient, customer-focused, affordable system accessible to those who desired judicial determination.

Lord Woolf, in his first public response to her lectures, accepted that there was much he endorsed. But, he told the audience, he had not been asked by the Lord Chancellor, in undertaking his review of civil justice, to find ways of reducing costs, but ways of improving civil litigation.

Genn, he added, had “huge authority” in any criticism she made. And he recognised that empirical research was always lacking in this jurisdiction, particularly on civil justice. He had hoped, he added, that such research would have emerged as the reforms took effect.

But then came this: there had, Woolf said, been some research done by his review team — and the researcher was Professor Hazel Genn. “That was a type of empirical research and I thought we were being innovative in obtaining that research.”

He did not stop there. Where Genn was “absolutely wrong” was in misunderstanding “the motivation behind what we are doing”. There had been one other outspoken academic who had criticised the Woolf reforms and he had been totally consistent in his attack.

That, Woolf said, was Professor Michael Zander (who was with Genn and Woolf on the seminar panel). But what had struck Genn as being wrong about the reforms had not struck Zander. “He did not see us as an excuse by government to starve the civil justice system of the resources it should have.” Rather, his reforms required proper resourcing of the civil justice system.

It was said, Woolf added, that there was some sort of understanding between government, judges and lawyers to bring about a situation where civil justice would be under-resourced, a collective desire to drive cases away from the courts.

But while agreeing that the profile of civil justice had been too low, too undervalued by governments of the day and had always been the poor relation of criminal justice, Woolf said judges had no part in this. Again and again judges lamented this fact and had also made clear that they disapproved of the Government policy of making the civil courts self-financing. “It’s nothing to do with the judiciary.”

As for mediation, Woolf said he saw this as a “proper functioning part of the justice system that does help in certain cases to achieve justice”. Genn, he concluded, had been influenced by what she had learnt of the American experience. But that did not apply to this jurisdiction. This, concluded Woolf, was “not the Hazel I knew”.

For an academic audience, it was quite a ding-dong. In the audience to hear this knockabout was Sir Rupert Jackson, who is in the middle of his own review of civil justice, to report at the end of the year. He took notes and said that he had picked up some ideas. What was clear, he said, was that whatever he recommended it was not going to satisfy everyone.

Or perhaps, as another attendee remarked, the civil justice system is like the NHS. “Whatever you do, you can never solve all its problems.”

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