Impact Of Woolf Reforms On Civil Justice System Law Essay

Impact Of Woolf Reforms On Civil rightness Sy stop uprightness EssayThe Woolf restores accommodate supremacyfully add-ond entranceway to umpire for litigants disrespect universe con confronted with extensive varyings and multifaceted difficulties. However, the recovers hold in failed in some major(ip)(ip) aspects, ultimately f all tolding victim to the nonoriety and reality of good reform. The polite evaluator constitution and the Woolf reforms will firstly be discussed, moving into an synopsis of the full-grown argonas of the Civil Procedure Rules, with the essay concluding with an all overall summary of the reforms, exposing the reasons for its miserys, in reference to the reality of the well-be vexdian nicety placement.The Civil Justice System and the Emergence of the Woolf Reforms and Access to JusticeThe tapeous umpire ashes has the dual function of serving the public good and acting as a private means. Its social purpose is to provide the machiner y for bad cause to the rights of citizens, whilst contributing to the social and economic well being of the community and regulating the exercise of executive power under the democratic principle of the convening of law. For these purposes to be reachled, there essential be effectual access to justice with an awargonness of every citizen of their rights, entitlements, pledges and responsibilities, and of the procedures for redress. The underlying basis of the Woolf reforms is therefore to ensure that the justice form provides opportunities for the public to perform good their rights.An unambiguous aspiration to go the justice frame culminated in 1994, when the whence Master of the Rolls, Lord Woolf, was plant by the Lord Chancellor, Lord Mackay, to assess the practices and procedures of the civil motor hotels in England and Wales. there was a four year, all-embracing inquiry and extensive consultation surgical operation that made over three nose candy recommendatio ns designed to improve the boundarys of civil judicial proceeding. There were two reports, published in June 1995 and July 1996, that revealed the findings of the wide of the mark-ranging inquiry and provided the behind for the subsequent Civil Procedure Rules 1998. It is widely accepted that the perceived deficiencies of the civil justice system were met by proposals of radical change and the Woolf reforms were far much than than a modification or clarification of the justice system.This investigation into the countrys legal system was required to maintain the integrity and political legitimacy of the system, preventing it from being brought into disrepute. The impact that the cogency of a nations justice system can start out on considerations such as the economy and political presence in international affairs was similarly recognised. This is especially the case when identifying London as a prominent dispute resolution centre in the world, attracting litigants from crosswi se the globe. The reputation of England and Wales was assessed and the pre-Woolf litigation beautify was in need of reform if this historical justice system was to maintain its standing as champion of the closely competent providers of justice.Findings of the Woolf ReformsThe perceived deficiencies revealed by Woolfs inquiries were readily agreed by the users of the civil justice system. In essence, litigation in England and Wales was too slow, too pricey and too un current. These injustices were preponderantly influence to be the issuance of the English adversarial usance and allowing parties to assume the proactive and dominant case instruction role, leaving the judicial system to perform simply a reactive role.Too SlowThe pre-Woolf landscape contained too much mark that crippled the dexterity of the system and provided a disincentive to those seeking to en string their rights. This introduced an additional cause of render, such as through making it much diffi cult to establish the facts and leading parties to locate for inadequate compensation.1Lord Woolf crop stickup to be the direct result of the adversarial gloss of litigation that lawyers practised at bottom and thrived upon. The time impartn to go on a case from an initial say to final examination hearing was a matter of concern, especially in making litigation expensive.Too expensiveThe ever-increasing speak to of litigation was gear up to limit access to justice. However, for some academics, proud cost do non automatically entail that low income citizens be prevented from participating in the justice process because of the existence of what Michael E. Stamp2has named the m unrivaledtary illusion, where a belief arises that legal services are becoming unaffordable because they have emergenced in relative price. Stamp argues that society must qualify the proportion of income devoted to antithetical goods and services and rely upon increasing the productiveness of legal services to match the increasing be sooner than alone aiming to abate cost whilst maintaining contemporary levels of tycoon. The Woolf reforms took on the dual tone-beginning of aspire to increase the output of the justice system and endeavouring to strip away superfluous be. Stamps comment is an understatement of how low income citizens are being priced out of litigation and fails to stress the importance of access to justice for every citizen, irrelevant of social or monetary status.Despite the above debate, it is accepted that the cost of a declare is a barrier to some and a problem for all litigants3and in more direct opposition to Stamp, Sir Thomas Bingham4robustly describes cost to be a cancer eating at the heart of the administration of justice. The system was too expensive with patterns of be being higher than the claim was worth. gritty cost act as a deterrent to those making and back claims and a number of businesses say that it is often cheaper to put up up, irrespective of the merits, than to defend an action. For individual litigants the unaffordable cost of litigation constitutes a denial of justice.5The primary plan to provide justice for individuals and businesses was being undermined by the in businesslike cost of the machinery. This begins to uncover the cruel reality of accessing justice that will run throughout this legal opinion of the Woolf reforms.Too UncertainUncertainty for litigants was a simple but hearty limitation of accessing justice arising from unpredictable costs, timings and timetabling, and the uncertainty of judicial decisions. Uncertainty constituted a strong deterrent for litigants and must not be minimised as an issue.The English Adversarial TraditionThere was a definitive intention to substitution the litigation culture from that of adversarialism to compromise, co-operation and answer. Woolf described the adversarial system as likely to sanction an adversarial culture and to degenerate i nto an environment in which the litigation process is too often seen as a battlefield where no rules apply.6There was a determination of lawyers to manipulate court of justice procedures, delay and disrupt the opposition counsel, increase the costs of the litigation for in-person profit and impose professional protectionalism. Woolf identified that main adjectival tools for conducting litigation efficiently have each arrest subverted from their proper purpose7and the powers of the court have authoriseen behind the more sophisticated and aggressive tactics of some litigators.8Lawyers were accused of abusing the disclosure of information, disputing real points, making tactical appeals and deploying tactics to drag out litigation, thereby cause up costs. Any analysis of this tradition identifies that the sum of this abuse falls on the client.Woolf disclaimed all potential break of serve towards an inquisitorial system and abandoning adversarialism in its entirety, in order t o maintain its benefits, such as its impartiality compared to inquisitorial techniques. The proposed reform of case management (as set out below), was therefore peed to be compatible with the adversarial tradition, establishing conditions where it could survive the transfer of reign from the parties to the judicatory. oddment on the Findings of the Woolf ReportsThe justice system was primevally failing the litigant, on and for whom the whole system should, in principle, focus and deliver. Fairness, speed of process, reasonable results and the availability of appropriate procedures were all found to be lacking within a system which promised all these goals. The impression of litigation is a fragmented, inefficient and incomprehensible system failing to fulfil its function and its potential, to promptly distribute affordable and certain justice.It is difficult to take issue with Lord Woolfs findings and the principles of reform that emerge from his conclusions. The reliability an d diligence of the access to justice reports are uncontested and the research element of the reforms will come about to act as a valuable identification of the positives and, importantly, limitations of the civil justice system. In this facet of investigation and assessment, Woolf was undoubtedly palmy.However, the means and choice of initiatives that Woolf proposed to recompense the exposed limitations are open to debate and critique, particularly when reciprocally identified as being radical and controversial in their nature and the statement in which they attempt to guide the justice system.Objectives of the Woolf ReformsThe aims of the reforms can be condensed into one overriding objective, set out in Civil Procedure Rules 1.1, which was to increase the competency of the civil justice system to decide and deal in good order the cases set in advance it. This admits such considerations as trim excessive costs, ensuring cases are dealt with expeditiously, honestly and in a manner that is proportionate to their nature. This would create equalize footing for parties, guaranteeing that there is a reasonable allotment of resources per case by the court.The vision of Woolf and the principles of his report were reinforced in the Civil Procedure Rules ( cardiopulmonary resuscitation) which came into force on 26th April 1999. The cardiopulmonary resuscitation established a common set of procedures and rules for some(prenominal) the county courts and High Court to follow and gave effect to the three hundred plus changes, amounting to the most radical change to procedure in the decease one hundred years. The Woolf reforms did not tinker with the existing system they rewrote it.9The CPR are extensive, but some elements are considered to be more prominent than others. It is these that I will focus on in my assessment of the CPR as the implementation of the Woolf reforms. The following six elements of the CPR were, and continue to be, considered to have had t he most effect on the English civil procedure.Case charge TechniqueLord Woolf believed case management to be snappy in solving the key problems of cost, delay and complexity, identifying that the three are interrelated and stem from the uncontrolled nature of the litigation process. In particular, there is no name judicial responsibility for managing individual cases or for the overall administration of the civil courts.10The transfer of control from the parties to the judge was designed to improve the pace and efficiency of litigation through imposing tighter timeframes and reducing case duration. Woolf recommended that in comparison to case management, the complexity of rules should be eased through modernising terminology and eliminating the distinctions mingled with procedure and practice.Woolf not totally sought to change the legal culture of the parties and their counsel, but also the role of the judiciary within an organised court service. Case management was an interven tionist approach, imposing a more dominant role for the courts whilst not dismissing the English adversarial tradition in its entirety. The judiciary were weaponed with wide discretionary powers, for example, imposing primordial trial dates and refusing any plea to delay the start of a trial. The governing role of the judge is a common aspect of other continental legal systems and its introduction constituted a shift of the English legal system towards the majority.11PositivesCase management has amend access to justice through increasing the speed of litigation. This initiative l instigate that it was the judges rather than the lawyers who dictate pace. No longer are the large claims allowed to fester in the do not touch drawers of solicitors register cabinets.12Lawyers were too often judged to slow down litigation, Woolf himself regarding that in the majority of cases the reasons for delay arise from failure (by the lawyers) to progress the case efficiently, wasting time on p eripheral issues or procedural skirmishing to wear down an opponent or to excuse failure to get on with the case.13Many academics view the shift in management from the lawyers to the more responsible and non-partisan judiciary to be an effective reform. For example, 98% of respondents to the 2001 Woolf Network Third Survey considered that the newly introduced Case counsel Conferences worked well in their case.14The increase of discretionary power and control has meant that time-wasting and tactical applications have not been tolerated, and breaches of judicial instruction in relation to the final hearing can result in claims being struck out.LimitationsIt is argued that a judge does not necessarily or automatically possess the skills or know-how to manage cases competently, reducing the predictability of a claim. The concern is that competency levels are suggested to decrease down the ranks of the judiciary whilst the levels of discretion are maintained. Case management has also be en argued to constitute judicial over-involvement, where lawyers who have obtained a deeper knowledge of the case are prevented from deciding how the case should progress. This not lone(prenominal) places the responsibility irrationally with the judge, who has only briefly assessed the claim, but also could be construed as reflecting a suspect of the professionalism of counsel to the dispute.Case management is predicted to fail as a constant solution because the institution of judicial case management represents a one-time productivity increase where the immediate effect may be lower costs of obtaining justice, but, over the long run, the cost savings will evaporate as a direct result of the cost disease.15This educated prediction of needed failure of case management, and the Woolf reforms and CPR as a whole, must be treated with care, because it is in essence a prediction. However, this calculated forecast of the reform process suggests a negative outcome of case management th at cannot be ignored.The necessary technological advances within the system have also been inadequate to fight down the implementation of case management. The increased judicial use of computers and name conferences, the acceptability of email correspondence in many courts and the advantage of claims low gear online, have all been beneficial, but this is the limit of any technological input. This is not due to the lack of technology available, but rather the justice system barely tapping into the phenomenal potential of technology. It is characteristically a lack of resources and allocated specie that have limited the use of technology, thereby failing to adequately equilibrize the reforms. destinationIt is apparent that there should not be an outright return of the responsibility to manage cases back to the parties and their lawyers. The wholesale rejection of judicial case management does not emanate from a fair evaluation of an initiative that has speeded up litigation and , as a direct result, decreased costs. There must be a reassessment of this reform, with the aim of improving the ability of the judiciary to effectively administer and control cases, essentially through a growth of training judges in management techniques. In combination with this training, it is vital that there is an increase in the availability of technological support. This initiative seems to be a clear example of the dangers of such an interventionist approach.Pre-Action ProtocolsPre-action protocols constitute strict procedures and well-founded codes of practice which are dependent upon the facts and nature of a case, which parties when confronted with the prospect of litigation are expected to follow. The original two protocols in the CPR, for example, concerned personal injury and clinical negligence respectively. The aim overall was to encourage the early settlement of claims and avoid litigation, such as through an early win over of full information of the dispute. Th e protocols follow a similar pattern as the encouragement to participate in alternative dispute resolution, in that conformism with the protocols is not compulsory, but an unreasonable refusal to participate will affect the awarding of costs.PositivesThe success of the pre-action protocols is clear from their expansion from the original two to the current ten, in March 2010. The protocols have increased the structure and organisation of claims, creating certainty for litigants of the pre-trial move that they are expected to take, such as the effort to settle. This sequentially has worked up increased levels of dispute resolution and early settlement through the usefulness of the pre-action investigation, earlier exchange of information and the enhancement of the relationship and understanding between parties through more pre-action contact. The protocols have also been credited with ensuring that disputes which are litigated are done so on the foundation of detailed preparation and consideration. come along positives include the decrease of nuisance ill-founded claims and the success of the attached code, which categorises disputes which do not fall within the protocols.LimitationsThe protocols have been criticised solely for their burden and lengthy requirements. The obligation to perform tasks such as writing letters, disclosing information and exchanging expert reports all combine to duplicate the process of the claim to follow. A dispute is essentially fought twice, unnecessarily increasing time and costs.ConclusionThe protocols were a strong success only falling foul in the adverse effect of the burden of administration. They represent the strength of the reforms and suggest that radical reform can be effective if implemented correctly.The Track SystemUnder case management, a slash system was proposed to assign different procedures to different cases that are unconnected on the merits of complexity and pecuniary appreciate. The CPR classifies ca ses into one of the three tracks of petite claims, fast track and multi-track.16The low-pitched claims track is for cases of less than 5,000 in value and the fast track including claims that are more valuable than 5,000, but fall below 15,000, or that fail to fit within the small claims criteria. ready track cases are deemed to be simpler disputes, and on a slight variation, include landlord-tenant disputes and personal injury cases that are valued between 1,000 and 5,000. The multi-track includes all the cases over 15,000 that fail to be placed in the fast track and small claims.PositivesThe fast track arrangements have been successful in having cases heard quicker, with it being claimed that this guarantees a final hearing within 30 weeks from soon later on the defence has been sent to court.17The track system overall is merited for recognising that cases of different size and complexity should be dealt with in different ways with it having been noted that the criticism that such distinctions will condemn many claimants of small sums to indorsement class justice is wholly misconceived.18This initiative has increased certainty of timetabling and improves efficiency by ensuring that judicial time is spent proportionately to the issues in claims.LimitationsThe track system is highly controversial because of its technique of the early classification and has struggled to deal with the extensive variables that determine the costs awarded to a party.19The most influential variable that has hindered success is the unpredictability of the length of a dispute.20In some cases it is close to impossible to balance and account for variables, such as complexity and financial value, in the early stages of a case. The track system must also contend with all the disadvantages of going to court, regardless of which track, including the common problems of cost and time.ConclusionThe immediate defence of the track system that the analysis and clarification of costs is an ambitious and difficult task is not sufficient to excuse its failure. The system has fallen victim to the overload of variables and has failed to present itself as a competent antidote and controller of excessive costs. This initiative is a disappointment and current calls for its removal are justified. The concerns of the track system once again support the use of Alternate Dispute Resolution processes to reach a settlement, rather than proceed to trial.CostsMost of the descriptive guidelines of the overriding objective set out in the CPR concern the costs of litigation. High costs are often magnified by the issue of delay which acts as drag or friction upon the economy by reducing the ability of individuals and corporations to increase productivity and fully utilise capital.21At a minimum, costs must be more predictable and affordable, despite the difficulties of quantifying and identifying the sources of abstract costs not directly related to the litigation process. The objective must be reducing delay that creates excessive costs and constructing an initiative to reduce any influx in costs if a claim is inhibited by delay.The general rule of costs that the losing party must open those of the successful party still remains. However, CPR 44.3 has modified this long-standing rule by introducing exceptions to it and giving the court discretion in the allocation of costs in certain cases. The rules of paying costs also can require the losing party to pay on account before the final sum of costs is determined by the court. This scheme, coupled with the ability to order costs or a proportion of costs which have been summarily assessed to be paid within fourteen days has established in todays litigation system a concept of what one learned commentator has described as pay as you go system for costs.22The early and continuous payment of costs promotes early settlement as the parties assess their cases earlier and can make calculations as to whether their costs wi ll exceed their revenue. This scheme communicates the reality of a claim directly to the parties, encouraging them to rationally manage their finances and crystallise and target their personal goals within the claim. discloseies also have an incentive to put one over a more co-operative approach because of the threat of court imposed financial penalties for unreasonable conduct. This is an example of the court utilising a more forceful, realistic and arguably manipulative technique in the practical application of a reform through costs.PositivesMichael Bacon identified that several long established principles relating to legal costs have either been modified or disappeared completely as a result of the Woolf reforms, and one or two totally new concepts and procedures have been introduced.23This dramatic reform has increased the predictability and certainty of costs and balanced incommensurate financial means between litigants through orders for the party with greater financial re sources, but with the weaker case, to pay interim costs. There has also been increased enforcement of procedural rules, and action taken in respect of unreasonable conduct, by the court through automatic costs sanctions.LimitationsThe new costs regime has been criticised predominantly for failing to sufficiently reduce and control costs. Costs have been front loaded and perceived decreases in costs have been shown to be scratch out by adverse effects of other reforms. In addition, cost sanctions have been criticised for being oppressive and punitive instead of preventing non-compliance with court convention.ConclusionCosts have not been successfully reduced and only shaver decreases can be identified. The reasoning that costs are difficult to control because of their dependence upon a high number of variables, and the reality that there cannot be a sole recommendation targeting the financial burdens of litigation, are not acknowledgment for the failure of a multifaceted scheme d esigned to reduce costs. The only positive is that the emphasis on costs has raised the profile and importance of costs overall. This awareness has instigated a new outlook on reducing costs that may develop into a culture. The costs scheme constitutes the major criticism of the reforms overall.Alternative Dispute ResolutionReform of the justice system was required to promote more cases to an earlier, controlled settlement as opposed to an untidy, pressured one at the door of the court. The encouragement for early settlement follows Woolfs vision of litigation as the last resort for disputing parties, with the view that any settlement is punter than proceeding to trial. This has allowed alternative dispute resolution (ADR) to take a fundamental role, and information on the sources of ADR is provided at all civil courts and legal aid funding is made available for ADR processes. ADR is the umbrella term for a gathering of techniques used to solve disputes other than through the tradi tional court adjudication. However, proceeding should not be issued or commenced if settlement is still being explored. The competency of the Centre for Dispute Resolution (CEDR) which nominates mediators, liaises with both parties and prepares the mediation agreement, also became relevant.In theory, ADR prevents the limitations of the court process from proceeding to fruition. If a claim is settled in mediation, the costs, complexity, adversarialism, time and ineffectiveness of the court procedure are all circumvented. The reduction of cases progressing to trial also reduces the burden on the courts, allows for a more efficient and better resourced procedure and, ultimately, better access to justice. The court was therefore equipped with the power to direct parties to attempt ADR under CPR 26.4 and to order a calendar months postponement, facilitating parties to secure a settlement.In combination with ADR processes, offers to settle, known as Part 36 offers, provide yet another st imulus to settle before court action. Part 36 offers departed from the traditional structure of settlement, allowing both the claimant and defendant to make an offer to settle before the issuing of the claim or during the actual proceedings. If an offer has been made then this will be taken into consideration by the court when awarding costs.PositivesThere has been a clear cultural change and increased numbers of settlements through the busy promotion of ADR. There now exists a regime that encourages and obliges parties and their lawyers to consider settlement and utilise ADR processes. The largely aggressive adversarial behaviour associated with disputes has been softened with a more co-operative and collaborative approach. This culture immediately decreased the number of claims reaching court, with a 19.6% fall in the number of proceedings issued from 2000 to 2001 in the Queens judicial system Division.24ADR has offered willing litigants the opportunity to participate in a quick er, cheaper and more particularised and flexible technique for resolving their dispute. ADR also has many personal advantages for the participants as it can be creative, reduce stress and repair relationships.LimitationsThe essential limitation of ADR is its reliance upon the original participation in mediation. A settlement then relies upon the facts of a case and the parties approach to ADR. Many parties take a half-hearted approach to mediation and have no real intention to negotiate for a settlement. They intend instead to avoid the financial implications of unreasonably refusing to mediate. It is argued that as a result of both failed settlement attempts and indifferent participation in mediation, ADR does not necessarily reduce costs.Mandatory mediation is argued to constitute the greatest failure of ADR. Professor Dame Hazel Genn,25through the voluntary pilot mediation scheme of the Central London County Court (CLCC), identified that the Woolf reforms have motivated parties to mediate in order to avoid financial penalties for unreasonable refusal and create the appearance of following judicial direction. There was also the 2004 Automatic Referral to mediation Scheme (ARMS) run at CLCC, where one hundred cases a month were selected at random and sent to mediation before any court hearing. Parties unwilling to partici