This week it is five years since Lord Woolf, now the Lord Chief Justice, changed the landscape of civil justice. His far-reaching reforms were aimed at abolishing the twin bug-bears of the civil courts — cost and delay. He wanted to see a system where the courts were open to all, regardless of means; and where litigation was not dragged out by lawyers locked in combat and deploying tactics guaranteed to drive up the expense. How far have they worked? “I’M IN the law reports. Child custody case.” I wasn’t wearing a wig but the taxi driver, on what was for me an illuminating journey last year, sniffed something of the county court about me. “And I’m always in the courts. I’m taking a break from driving this summer and I’ve saved up five claims to bring. There won’t be any court fees to pay — I’ll be on income support so I’ll qualify for fee exemption.”
Small claims were always a big part of the county courts’ workload but since the Woolf reforms they have grown bigger. For claims involving up to £5,000 (or £1,000 for personal injury and certain housing repair cases) there is generally a special regime. The final hearing is more relaxed, the judge is likely to adopt an interventionist approach to get promptly to the heart of the case and a party who has acted reasonably should not be faced with a heavy costs bill even in the jaws of defeat. It is a regime to encourage litigants to go it alone, without lawyers.
But if the reforms have helped litigants to pursue disputes without lawyers, a downside is the bizarre claims. One claimant I encountered sued because the defendant had allegedly stared at him in the street. Nor is the exercise cost-free. It is the well-intentioned but misconceived claimants who have begun proceedings without legal advice that one should fear for. Their claims may be thrown out early on before a final hearing is fixed. If that happens and the defendant has had lawyers acting for him, the claimant will probably be ordered to pay the defendant’s legal costs. One of those £25 claims of principle could result in a bill for several hundred pounds. The general rule that the unsuccessful litigant can be liable only for restricted costs in small claims does not now apply to an early death of the case.
So much for the small claims. In all cases, it is the judges rather than the lawyers who dictate the pace. No longer are the larger claims allowed to fester in the “do not touch” drawers of solicitors’ filing cabinets. Claims that will take no longer than one day to be heard for more than £5,000 (or £1,000 in those personal injury and housing repair cases) and up to £15,000 and other suitable non-money claims are fast-tracked. This guarantees a final hearing within 30 weeks from soon after the defence has been sent to the court. Claims involving more than £15,000 and other substantial cases may be heard just as quickly.
Time-wasters are more readily flushed out and breaches of court directions relating to preparations for the final hearing may result in the claim or defence being struck out. And the judges have taken a firm line on experts, who are too often brought in, too expensive and too frequently tell the court what it already knows in language it cannot understand.
The single expert, jointly instructed by the parties, has become the norm in most types of case. Reconstruction experts in accident claims will rarely be allowed. If a party can justify relying on their own expert, the court may limit how much they can charge. This is just one way that judges can try to ensure that the cost of a case is proportionate to the issues.
More disputes are settling without proceedings or after proceedings but before a final hearing. Eight pre-action protocols — they cover, for example, claims for personal injury and defamation claims — contain the steps that litigants are expected to take before starting a court case in an effort to settle and they may well be punished on costs if they neglect to do so. There is even a code to be followed where a dispute is not covered by a specific protocol.
And the courts have ways of saving litigants from the financial disaster to which they may be blind, once proceedings have started. Claims are often stayed, usually for one month, so that the parties can try to settle, and during which time neither side can take any formal steps. There are also six court-based mediation schemes in England and Wales and at Manchester’s civil courts a mediation adviser burst into action last week. At Central London Civil Justice Centre, a pilot scheme has been introduced for automatic mediation in selected claims for more than £5,000. Intransigence by a party about mediation could be to their detriment when the judge makes a costs order.
The technological advances needed to complement the reforms have been slow, although there has been some progress. Not only is it patently obvious that they can tell the difference between a jukebox and a tangerine but judges now use computers — and telephones, with many of the procedural minihearings that often precede the final trial taking place by way of telephone conference. Most claims can be started online. E-mail for correspondence and filing of documents is being accepted in the commercial court and five county courts. Online commencement of housing possession claims is likely before the end of the year. Nevertheless, more money, more progress, please.
Judges have tried to control costs by effective case management including, mainly in very substantial litigation, capping the amount the parties can spend on the case. But despite their very best efforts, the costs of litigation remain alarmingly high. Any individual who relishes litigation in the absence of a “no-win, no-fee” agreement with his or her lawyers or legal expenses insurance is stark, staring bonkers.
This is a birthday to be celebrated, not cursed. We have a regime that obliges those in dispute and their lawyers, as never before, to concentrate on settlement. And a regime that pushes the non-settlers towards a speedy trial. It is those costs that we have to grapple with.
The author is a district judge
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