Jackson: Progress report
Of the eight requirements of a just civil justice system identified by Lord Woolf, there are many who would argue that not one is currently achieved. Has Lord Justice Jackson fixed that?
It seems a long time ago that Lord Woolf published his final report on reforms to civil procedure. Indeed, the Civil Procedure Rules (CPR), revised fast-track procedure, cost capping and pre-action protocols are now approaching 20 years old!
A sheep in Woolf’s clothing
Woolf proudly titled his report ‘Access to Justice’ and claimed that his reforms would increase said access to justice in key areas of litigation. He stated: ‘My primary concern has been to improve access to justice, in particular for individuals and small businesses...’. He went on to say that his investigations had shown that ‘... opposing sides do have a common interest in the creation of an accessible and affordable civil justice system’.
This, then, was the stated primary aim of Woolf’s reforms. But, of course, he was also interested in making the courts cheaper to run, cutting down on court time wasted in convoluted and protracted procedures, and dealing harshly with failures to adhere to timetables and directions.
His report, published in 1996, asserted that the civil justice system should:
- be just in the results it delivers
- be fair in the way it treats litigants
- offer appropriate procedures at a reasonable cost
- deal with cases with reasonable speed
- be understandable to those who use it
- be responsive to the needs of those who use it
- provide as much certainty as the nature of particular cases allows, and
- be effective, i.e. adequately resourced and organised.
On the whole, Woolf’s reforms were perceived to have been successful, or at least to have moved the system in the right direction. Now, though, some 18 years on it all seems be falling down around our ears.
Of the eight requirements of a just civil justice system identified by Lord Woolf, there are many who would argue that not one is currently achieved. Whether it remains just and fair may be debatable, but our civil justice system certainly fails on the requirements of reasonable cost, speed and responsiveness.
Towering above all these issues, by the monumental size of its failure, is the requirement that the civil justive system be adequately resourced. For the demands placed on it, our civil justice system is hardly resourced at all – so much so that the phrase ‘access to justice’ might now better be prefixed with the word ‘no’!
A wolf in Jackson’s clothing
The decline in our civil justic system has been profound and rapid. So what has happened? Well, in a word, Jackson.
Of course, most would argue that our pre-Woolf civil justice system was somewhat unwieldy and expensive. Woolf, himself, commented in 1996 that ‘I am particularly concerned about the level of public expenditure on litigation, especially in medical negligence and housing. Substantial amounts of public money which are now absorbed in legal costs could be better spent on enhanced medical care and on improving standards of public housing’.
There is, however, a world of difference between the sort of economic reform envisaged by Woolf and the reckless, wholesale cutting that has taken place in the name of Jackson. Now, 1 year on from Jackson’s reforms, the Civil Justice Council has launched a consultation to seek the opinions of stakeholders. The response from most quarters has been scathing, with the Law Society calling the changes made under Jackson ‘inconsistent, time-consuming and costly’.
One of the most significant reforms that has had a noticeable impact on day-to-day commercial litigation is the strict attitude being taken towards compliance with court rules and orders. There has been a considerable narrowing of the circumstances in which relief from sanctions can be granted (as set out in CPR 3.9). Whether the aim of making litigation more efficient has been achieved here is a moot point because the fear of sanctions means that more parties than ever seek approval from the court, and that in itself has costs implications.
The new budgeting and costs requirements have also been criticised widely. The Law Society noted that budgeting has led to significant frontloading of costs – both the costs of the budgeting process itself and the intentional delay in issuing proceedings so as to avoid costs budgeting kicking in for as long as possible. The Society said: ‘The climate of litigation has changed. Co-operation between solicitors on opposing sides is breaking down as no one can trust anyone not to take the slightest point.’
Other causes for concern include:
- the courts now place administration over access to justice
- there’s an increased risk of satellite litigation
- the UK’s reputation for international dispute resolution is being damaged
- the reforms have created a ‘climate of fear’ and made cross-party agreements more difficult, and
- lawyers are finding it difficult to explain litigation funding to their clients.
As a final point, the removal of recoverability of ‘after-the-event’ insurance premiums and success fees from defendants, and the introduction of ‘qualified one-way costs shifting’, have caused parties on all sides to express reservations about the new regime. There is, indeed, a general feeling of deep dissatisfaction.
Effect on expert witnesses
Changes to the CPR post-Jackson concerning the use of expert witnesses have also been roundly criticised. In the past, a number of experts may have been called to give an opinion, with some providing overlapping evidence.
But the emphasis now is on strictly limiting the role of experts. Constraining the parties to one expert (or giving directions for a joint expert to be appointed) now means that the range of expert opinion in a case is also limited. Obviously this has potentially damaging knockon consequences for justice, especially in medical and personal injury cases.
Experts have also begun to experience the effects of increased time pressures being placed on their instructing solicitors to comply with court deadlines.
- Experts have been asked to omit the dates of reports and witness statements, or not to refer to source materials, in reports that were being finalised very close to court-imposed deadlines.
- Expert witnesses have reported attempts by solicitors to ‘barter for lower fees’.
- Experts are being asked for more detailed costs estimates.
Commentators on expert witness matters have been warning the Ministry of Justice that if expert work is not properly remunerated or becomes too burdensome, experts will simply walk away. Many experts do, after all, have a professional ‘day job’ to return to, unlike the lawyers who can’t find alternative employment quite so easily. We have already had cases collapse because no barrister could be found who would agree to work for the fee rates on offer, and now we’ve seen cases fold because no expert witness was prepared to work for the paltry fees proffered.
For parties to litigation, funding is the primary cause for concern.
Claimants say they are struggling to locate solicitors who will undertake civil work, particularly lower value non-RTA (road traffic accident) claims. Indeed now, in most cases in which claimants are represented by a solicitor, they face paying out substantial sums in legal costs because of the changes to the costs regime. On the other hand, defendants report that they are at a disadvantage with the costs budgeting requirements in personal injury claims because of the relatively small chance that they will recover any costs. They also say that claimant solicitors are now more likely to delay the issue of proceedings until they have everything prepared so as to be able to comply with any subsequent timetable. Defendants are then faced with a strict court timetable within which they must prepare documents and statements. Is this fair?
It also appears that a lack of public funding and difficulties with alternative funding arrangements have led to a noticeable decline in expert witness instruction rates in a number of areas of expertise. In particular, it seems that instruction rates have slowed down or dried up completely in family-related, forensic accountancy and personal injury cases.
Court users fear that the increasingly mean and penny-pinching attitudes toward expert witness remuneration will mean that the very best experts will vote with their feet and desert the expert witness field altogether. That obviously leaves the way clear for inexperienced experts or the poorer sort of expert who, for years, the court system has been at pains to weed out. How is that proper access to justice?
The diminishing returns for lawyers, the increased risk of negligence claims and the swingeing increases in professional indemnity insurance mean that lawyers, too, are becoming increasingly disillusioned. Some law firms have ceased to undertake specific kinds of work altogether, while other once-established firms have closed their doors for good.
Lawyers with a social conscience (and there are many!) have been wringing their hands over what they now perceive to be a lack of access to justice for the less well-off in Society. It’s got so bad that those working in some court circuits have taken, or are contemplating, the unprecedented step of going on strike. One incensed commentator said that the only realistic option now for litigants is to abandon the court system altogether and, instead, to endeavour to arbitrate in a sensible manner. Or is that, in fact, the real aim of Jackson’s reforms – to make civil justice in England and Wales so difficult to achieve that we seek other ways of sorting out our problems?
Universal alienation – a remarkable outcome The real incompetence throughout this process of change has been in the almost complete failure of the authorities to carry the goodwill of court users, lawyers, experts and the press. Aneurin Bevan, when asked how he had overcome the resistance of general practitioners to the National Health Service, said: ‘I stuffed their mouths with gold’. Lawyers, experts and others who work in the civil justice system might think their mouths have been stuffed with something far less palatable!
One wonders why Jackson wanted his name associated with this exercise in systemic vandalism. But we only have to look to the seemingly benign Dr Beeching. He, too, believed that his slashing, cutting and closing exercise was in the national interest and for the good of the railways. Today, few would credit him with anything other than the wholesale destruction of a national asset.
Jackson, and those who follow his lead, would do well to remember that once something has been dismantled it may be impossible to put back together again. Once the country has dug itself out of the economic hole it is in, which it will, we’ll find ourselves stuck with a second-rate legal system. The perpetrators of this sorry mess will have a great deal to answer.