From 26 April a new regime governs the civil courts in England and Wales. Procedures introduced under the guidance of Lord Woolf, Master of the Rolls, will, we are told, lead to cheaper, quicker and less confrontational resolution of disputes.
It is probably the most radical legal development since the overhaul of land law in 1925. Then, dozens of conveyancing solicitors, unable to face such change, left the profession. This time, the only reported casualty is a district judge who announced that he was too old to change and took early retirement.
Litigation has previously been conducted under separate sets of rules for the High Court and county courts: 4,000 pages for the former, 1,500 for the latter. Now, a shorter and supposedly simpler set of rules will apply to both courts. Anachronistic legal language is out: “plaintiffs”, “writs” and “affidavits” are replaced by “claimants”, “claim forms” and Orwellian sounding “statements of truth”.
The guiding theme is that clients need protection from their lawyers, who are too costly and too slow. The costs of bringing a case frequently exceed the amount that is actually recovered. In a dispute over whether a car accident victim should receive compensation of around £10,000, typically £7,600 is spent on legal bills.
The blame doesn’t always lie with lawyers or the courts. Accident cases are so expensive because insurance companies nearly always contest a claim, however clear the liability. People involved in boundary disputes and arguments over rights of way are particularly obstinate. A lawyer who proposes a perfectly sensible settlement will be told “it’s a matter of principle”. But, for a barrister at least, refusal to act because he thinks his client is acting unreasonably can amount to professional misconduct.
On delay, the legal profession is more culpable. Procrastination is part of the culture. Barristers are routinely sent papers to confirm that court proceedings are appropriate two years and 50 weeks after someone has been seriously injured in an accident. After three years, a claim can no longer be brought. Missing the deadline lays the solicitor open to a professional negligence claim; waiting until the last minute does not.
Often the delays get worse once litigation is commenced. Taking the seven cases in one recent edition of the weekly All England Law Reports, the matters under consideration were: export credit guarantees issued in 1988; an attempt to buy property in 1988; a valuation identified as being negligent in 1989; an accident in 1993; an application by the DTI to disqualify a director arising out of the Barings collapse in 1995; planning permission sought in 1995; and overpayment of rent in 1995. Many of these rulings aren’t even the end of the case; they are merely procedural decisions in advance of hearing the actual subject matter. Of the 18 judges who heard those cases, including Lord Woolf, who sat on the oldest, not one commented on, let alone criticised, the delay. Judges are as immured in the culture of procrastination as anyone. In the mid-1990s hundreds of civil cases ground to a halt for years when the Court of Appeal postponed all hearings in relation to a procedural provision (introduced to speed up litigation!) until a sufficiently large number could be dealt with together.
So will the new rules help with either cost or delay? They restrict the amount of legal fees that the winning side can recover from its opponent. For a claim between £3,000 and £10,000 – the bracket in which compensation for a broken leg leaving a slight limp might fall – only £500 will be payable for the advocate’s trial fee. Such trials usually last two days and take another day to prepare. So top barristers will take on cases only if the client can afford to pay. Insurance companies will fall into this category. Most accident victims – for whom the availability of legal aid is also being reduced – won’t. So they will have to settle for less accomplished advocates, and thus diminish their prospects of success.
Look to the US if you want to see what happens when you restrict successful litigants’ ability to recover costs. Doctors are reluctant to enter high-risk areas such as obstetrics and, if they do, insurance premiums form a high proportion of the fees they charge patients. Public authorities and substantial businesses are plagued by suits of little merit and must either pay them off or incur legal bills defending them. Since, in most states, the unsuccessful party does not have to pay costs to the victor, there is no disincentive to litigate. Coupled with the no-win no-fee basis, also being introduced here, the disgruntled effectively get a free hit at whatever target they want.
The proposals to prevent delays may prove a little more adequate. No longer, in theory at least, will the judge sit back passively when the lawyers for both sides agree to adjourn for six months so that a 500-word statement can be drafted. The new rules stipulate timetables for litigation, particularly rigorous for smaller claims, and very convincing excuses will be required before the courts will allow lawyers to depart from them.
But nothing has yet been done about delays that can occur before proceedings are commenced. The Law Commission is considering them separately but it would surely have been better to draw up rules that cover the two forms of delay together. After all, what matters to the litigant is the time that elapses between the incident that gives rise to the claim and the case’s determination.
There is a further problem. It was best expressed by a speaker who, at a seminar on the new rules, held up a picture of the space shuttle. “This,” he said, “is the future of our practices. Woolf will lead to endless satellite litigation about procedural matters.” In other words, the circumstances in which timetables may be departed from and the sanctions against the dilatory could lead to as much litigation as the claims themselves.
The reforms tend to assume that courts are more likely to tackle delay than lawyers. Yet judges are happy to wait six weeks before allocating a ten-minute appointment. The court structure is untouched by the reforms, and there is nothing in the new rules that attempts to modify the prevailing judicial culture. Thus the London-based High Court retains its monopoly on hearing applications for judicial review of public authority wrongdoing as well as defamation. The complex rules about which judges are to be addressed as “My lord” and “Your honour” remain; so do the even more complex rules about who sits in ordinary suits, purple gowns, red gowns or black gowns. This nonsense may be harmless in itself, but it encourages in some judges an alarming sense of their own importance. Every few months, one abuses his powers by imprisoning a spectator in his court for a misdemeanour such as eating or having a mobile phone go off. Further, judges cannot be sued. If a lawyer wastes costs by losing a file of papers he may be ordered to pay for it; if a judge does the same no sanction is available. The Court Service will sometimes pay compensation where a non- judicial employee makes a mistake, such as forgetting to send a notice of hearing. But such is the rigidity of judicial immunity that if the judge forgets to hand the order to his clerk, nothing can be done.
The failure to tackle such anomalies suggests that the new rules result, not from a serious attempt at reform, but from a belief that, because there are things wrong with the system, doing anything to fix it is better than nothing. Further, since the new rules were published less than two months ago, the courts are probably in for a period of chaos while the judiciary and the lawyers adapt. The same people who take six months to draft a short statement can hardly be expected to absorb wide-ranging reforms in so short a period.
Ultimately, a reduction in legal fees can only be accomplished by a commensurate reduction in lawyers’ incomes. Few in the profession believe that is going to happen.
The author is a barrister