10 years of the CPR

Central to Lord Woolf’s vision and the new culture 10 years ago was the desire for disputes to be resolved consensually; this was addressed through imposing a duty on litigants and their representatives to assist the court in furthering the Overriding Objective (CPR 1.3).

The active pursuit of a settlement rests on CPR 1.4(1)(e) and (f)—and active case management includes “helping the parties to settle the whole or part of the case”. Yet while the interlocutory skirmishing might have abated, it remains doubtful whether cases really are managed with a view to settling.
At the LexisNexis CPR debate, held in March to mark the 10th anniversary of the introduction of the Woolf reforms, DJ Michael Walker said the pre-trial process was now less adversarial and that he felt the duty to co-operate had made a huge difference. But Sir Anthony Clarke MR, also speaking at the debate, surely came closer to the reality in his more circumspect view that the duty to co-operate was worthwhile but had not driven out the adversarial. Simon Davis, head of commercial litigation at Clifford Chance, also implied that cases were far from being managed with a view to settling when he said the judge should ask if settlement talks are taking place and hinted this was simply not happening often enough.

Robust judicial management of cases, with a view to settlement, would therefore seem to go a long way to fulfilling Lord Woolf’s initial aims and reduce costs as a result. Further investigation into judicial case management therefore needs to be carried out in phase two of Lord Justice Jackson’s current review into civil litigation and hard evidence, beyond the anecdotal, needs to be gathered. Unless settlement becomes the true goal of case management and is pursued with vigour, then the cost of civil litigation will continue to spiral and justice will most certainly not be open to all.

The LexisNexis white paper, The Cost of Civil Justice: Time for Review or Revolution?, by Elsa Booth is available to download at: www.lexisnexisconnect.co.uk
 

• Add new comment
• Printer-friendly version