Back to the future
Date: 26 November 2010
Authors: David Greene
Issue: Vol 160, Issue 7443
Categories: Opinion
Woolf & Jackson: a case of history repeating? David Greene reports
The administrative and political classes appear to turn their attention to civil justice every 10 years. A view hardly borne of extensive history (unless a legal historian tells me otherwise) save that in 1988 we had the Civil Justice Review, 10 years ago the Woolf reforms, and now the Jackson reforms gaining political traction.
A comparison between Woolf and Jackson raises some interesting similarities but also one vital difference. Both were authored by committed reformers. Both address one of the central tenets of democracy; access to justice. Both highlight the costs of litigation as a barrier to that access. In both cases civil justice reform and consequent primary legislation has scaled the political agenda when Treasury influence has sought to reduce spending on civil legal aid. This is not to suggest that either report did not deserve a place on the agenda in any event but civil justice, while forming the centre of professional life for lawyers and their clients, has little purchase with politicians or the civil service. Notably the 1998 reforms were also accompanied by legal aid reform.
Woolf started his work in 1994, producing an interim report a year later and his final report in 1996. Jackson started his work in 2008. He published his interim report in 2009 and his final report in January 2010. While the Woolf reforms were radical perhaps Jackson had the harder task in undertaking his work with limited resources in a very limited time. No wonder that the erudition and scope of his report met with acclamation even from detractors. Woolf was commissioned by the lord chancellor, Jackson by the master of the rolls. Woolf possibly had more political purchase than a judge-led Jackson report. Both could well have simply gathered dust on the political shelf.
An election intervened in the course of both reports; the resounding Labour victory in 1997 and the Coalition win earlier this year. Both governments aimed to cut the legal aid budget by reducing the scope of civil work for which legal aid was/is available. The Labour Government reduced the scope of legal aid for personal injury claims and reformed the system with the Access to Justice Act 1999. The Coalition Government in 2010 is repeating the process by further cutting scope and removing legal aid for almost all civil claims.
Subject to one significant element the natural result of the implementation of both reports is an increase in court resources to better manage the litigation process. Lord Woolf called for more court management of cases and investment in IT. Jackson also seeks greater participation of the court in the process particularly in relation to costs management. If the post Woolf period is taken as an example, however, any call on resources will be unmet. The Treasury’s interest in civil justice is to cut spending not to increase it.
Access to justice
The manner in which the Labour Government dealt with the cut in legal aid was to develop further the availability of conditional fees. Thus while cutting access to justice through legal aid, that access was restored through enhancement of conditional fees by providing for the recovery of the success fee and the ATE (after the event) premium from the paying party.
The Woolf Reforms which were intended to reduce the costs of litigation and simplify the process did neither because in part his reforms were hijacked and the change to the conditional fee regime became central to the changes. There have, of course, been successful elements of the Woolf changes but ask an observer what the overall effect has been and they are likely to say that over the last 10 years the litigation process has become more expensive and complex.
This is the picture into which Jackson stepped to have another stab at reducing costs and complexity. While accepting that some proposals from his work may reduce the cost of litigation the core contentious issue is not how much parties pay for access to justice but who pays. It is this element of the Jackson Report that hits the headlines with the Treasury. The proposed reforms and in particular the abolition of recovery of success fees are seen as potential cost cutters for the NHS, local authorities and the government as a whole. This, married with the savage cuts in legal aid, will see substantial savings in public expenditure.
Differences
What is fundamentally different between the implementation of Woolf and Jackson is that the reforms in the Woolf era provided a cut in access for claimants through legal aid but greater privately funded access through conditional fees. The Jackson reforms which are intended to reduce the ease of access for claimants in favour of defendants are matched by further drastic cuts in publicly funded access; the marriage between the two green papers (on legal aid and Jackson) leaves poorer claimants potentially facing a double whammy. Jackson himself warned that a cut in scope and eligibility would seriously affect access to justice for poorer claimants. The privately funded market will not on this occasion be picking up the pieces of legal aid cuts; with the Jackson reforms that private provision is likely to reduce. Jackson provides palliatives to encourage access for claimants but much will depend on how the post reform market shakes out.
History teaches us that expectations of reform that depend on increased expenditure in the courts will fall on barren ground. We may also learn that attempts to simplify process are matched by a lawyer’s ability to make it more complex in fighting his clients’ corner. Perhaps history will also repeat itself in that reasonable proposals from a dedicated reformer are being appropriated by the Treasury to produce a different result from that intended.
David Greene, partner, Edwin Coe LLP & consultant editor of New Law Journal. E-mail: David.Greene@EdwinCoe.com
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