Major civil justice reforms came into effect on 26 April 1999. Life in the civil courts will never be the same again.
Background
In 1994 Lord Woolf, now Master of the Rolls, was asked to tidy up civil procedures in England and Wales by producing one set of straightforward rules to apply to both the High Court and the County Courts written in plain English.
But Lord Woolf also took this opportunity to introduce root and branch reforms to civil procedures ultimately producing the unified Civil Procedure Rules published earlier this year.
Cases Covered
The new procedures cover only civil cases in the High Court and County Courts in England and Wales, not criminal cases in the Magistrates and Crown Court.
The main types of cases affected are:
personal injury claims
breach of contract cases
debt actions
injunction applications.
Even existing cases already before the court will be dealt with under the new procedures.
Small Claims
Personal injury cases worth up to £1,000 and other types of cases worth up to £5,000 will be dealt with in the small claims track which is designed to be quick, cheap and informal.
Although court fees and witness expenses are payable to the winning party in the small claims track, lawyers fees are not. Lay representatives are permitted in the small claims track so parties can be represented by themselves or by friends, advisors or officials as well as lawyers.
The trend in the small claims track is towards informality with straightforward issues either agreed or dealt with on paper and evidence at the hearing limited to the key issues in dispute.
Fast Track
Claims valued between £5,000-£1,000 in personal injury cases - and £15,000 will be allocated to the fast track in the County Court. In practice, the vast majority of personal injury claims will proceed in the fast track.
The objective is speedy justice and the courts are committed to hear cases within 30 weeks of allocation to the fast track. As the case is not allocated until the court receives the Defence, the time period is likely to be nine months from initial registration of the claim with the court, to the hearing date.
Although by no means speedy, this timetable is much quicker than the courts have managed in the past and it remains to be seen whether this promise can be delivered.
As the vast majority of personal injury claims will be fast track cases and since Defendant insurers have always strung cases out as long as possible, injury victims will reap the benefits in most cases.
But quicker justice is not offered without a price. Although the burden of proving the case remains firmly on the party claiming (the injury victim in personal injury cases) the new rules could make it more difficult to overcome that burden. Shorter trials and limited access to confidential documents could undermine the Claimants ability to prove the case. It remains to be seen whether the courts will adopt a common sense approach in such cases.
Multi-track
The more serious cases valued at over £15,000.00 will be allocated to the multi-track in which the focus is upon procedural judges taking control and managing the case at each stage. The emphasis will be upon strict timetables, limiting the issues and encouraging co-operation between the parties. No deadlines have been set for hearing dates but the intention is to simplify cases and shorten court hearings so that cases can be concluded more quickly than before.
Again, the objectives are to be applauded but it remains to be seen whether the courts and the judges can rise to the challenge now before them.
Co-operation
A cornerstone of the new regime is co-operation by all concerned. The parties are expected to co-operate with each other by exchanging information openly, by confining their case to the key points in dispute and reaching agreement where possible on individual issues. Lawyers can no longer hide behind legal terminology. The case must be set out in plain English. Defendants can no longer simply deny the allegations made. Instead, a Defence must now set out in detail the response to each allegation.
The parties are expected to co-operate before even taking the dispute to the courts. Codes of conduct known as protocols will be issued governing the parties conduct before any court proceedings are commenced. A protocol for personal injury cases is already in force.
Parties can no longer obtain conflicting expert evidence and leave it to an adversarial process through the courts to resolve differences of opinion. Joint experts will now be encouraged where possible. Otherwise, the parties will have to justify obtaining their own experts and communications between the experts and the parties or their representatives will be open to scrutiny. Experts' overriding duties are now owed to the court rather than to either party and expert witnesses are expected to set out whether there are any contrary opinions which could legitimately be expressed on the facts, as presented.
Limiting The Issues
The importance of focusing upon the core issues has already been stressed. This will be emphasised by case management and by penalties imposed on parties (or their representatives) who unsuccessfully or unreasonably pursue particular issues.
The principle that the losing party pays the cost of the winning party may now apply to individual issues rather than the case as a whole. The winning party may be left with a hollow victory where failure on a number of issues has resulted in a substantial costs penalty.
The courts will also have wider powers to strike out particular aspects of a Claim or Defence considered by the court to be unsustainable or irrelevant. The courts may also require the parties to list a statement of the outstanding issues and experts may be required to meet to reach agreement where possible and list the issues in dispute between them.
Settlement
Settlement has always been encouraged with the DefendantÕs Payment into Court which threatens a substantial costs penalty where the Claimant ultimately succeeds but fails to recover more than the amount paid in. The procedure is to be extended so that the Claimant can now put pressure on the Defendant by making a Claimant's offer.
Where the Defendant refuses to settle the claim on the basis of that offer, the case will continue. Where the Claimant ultimately recovers the amount offered or more, the Defendant will be penalised as the courts will be encouraged to award extra compensation, dressed up as bonus interest. For Claimants, it clearly makes sense now to put forward such an offer as soon as the case can be properly valued. For Defendants, it makes no sense to reject the offer where there is a real chance that the court award may equal or exceed the amount offered.
Similar sanctions and inducements have also been introduced to encourage offers in relation to particular aspects of the case or specific issues arising.
Responsibility
Parties pursuing or defending claims now have greater responsibility to ensure that statements made are accurate and sustainable. Statements of truth have to be signed, either by the party pursuing or defending the claim, or by their representative who will be expected to ensure that their client fully understands the implications of this.
Verification in this way will apply to a wide range of statements, documents and forms lodged throughout the case. The intention is to ensure that parties are open and forthcoming throughout the proceedings and that advisers communicate fully with their clients at each and every stage.
Summary
These reforms are clearly intended to bring about a sea change in attitudes from judges, parties and their advisers. There should be no hiding place for employers or insurance companies intent on using tactical devices to complicate or prolong relatively straightforward cases.
If the courts can rise to the challenge and if trade unions, officials and union law firms grasp the opportunities now presented, the reforms can only benefit members.
The new rules are not without their shortcomings. Some of Lord Woolf's original ideas ranged from misconceived to bizarre but many of these have been ironed out.
The balance sheet should favour trade union members injured at work. They have nothing to fear and a great deal to be gained if the realities in practice bear any resemblance to the promises on paper.