A few home truths...
Date: 02 April 2009
Authors: Tony Allen
Issue: Vol 159, Issue 7363
Categories: Features, CPR
To respond to an article which revisits the Civil Procedure Rules (CPR) critically and which does not deplore the growth of mediation is certainly a bit of a holiday (see “Zander on Woolf”: NLJ, 13 March 2009, p 367).
While the CPR may have aspired to save costs through simplifying and streamlining, they seem not to have done so. I am not, however, persuaded that this is because of the CPR, but perhaps despite the CPR, and because some aspects of the Woolf reforms remain insufficiently enforced.
The long view
The first impact made on litigation practitioners when the CPR were published in early 1999 (with Lord Irvine refusing to countenance delay) was of a penal code, littered with references to costs sanctions. As my former firm retreated to a nearby school library to gear up for the new regime, the fear that our urbane local district judges would at midnight on 26 April 1999 turn into ravening juridical werewolves intent on feasting on the flesh of uncompliant lawyers was vividly in our collective minds.
What drove the repeated application of cold towels was the fear that we would be in constant touch with our professional indemnity insurers, quite apart from writing weekly apologies to our clients about the fact that yet again we had incurred a costs sanction for some apparently unforgiveable (even if only marginally wicked) breach of the rules.
When we discovered that the district judges were arguably less comprehensively trained and just as uncertain about the effect of the CPR, and turned out to be less keen to impose sanctions than we had feared, litigation life became tolerable again.
When we discovered that it could be conducted in a much more civilised style, with sanctions imposed mainly for unreasonable litigation behaviour, we became even more cheerful and unremittingly reasonable.
The Denning inheritance
But importing the word “reasonable” into anything to do with the law inevitably plays into the hands of lawyers, delivering margins for discretionary uncertainty of great breadth. When, early on, apparently conflicting decisions on costs like Ford v GKR and Jones v Jones could be delivered by courts within touching distance of each other, we realised that the inheritance of Lord Denning was in legal terms pretty safe.
Yet was it any better in the non-Denning areas of the old regime? Compare the positions on payment into court and Pt 36 offers? Was it not extremely rough justice on a party who beat or lost to a payment into court by £1 or even 1p when that party had obdurately fought and lost on most points at trial but just squeaked a win of the war?
A new culture
Michael Zander (perhaps a little reluctantly) acknowledges the incontrovertible undermining of the old adversarial culture. This is the most undoubted and beneficent outcome of the threat of costs sanctions for unreasonable behaviour.
When I train mediators in common law jurisdictions like Ireland, Scotland, Pakistan, India, and South Africa, it always jolts me that, except in England and Wales, it is still largely true that not to ambush is negligent. Trials can still start with undisclosed documents, witness statements and expert reports.
How can ambush be fair on the parties whose case it is? They are entitled to advance notice of allegations and time to give answers where they can. Justice has not been undone, for instance, by advance disclosure of enquiry evidence films—a pre-Woolfian but very Woolfian development. Surely no one can seriously advocate the abolition of the cards-on-the table mindset for civil justice?
Profound change
Oddly one of the profoundest changes to civil practice wrought in 1999 was not by the CPR’s insistence on case management, but by the introduction of summary assessment and payment of costs on “interlocutory” summons and applications.
The need to pay costs awarded immediately either threatened solicitors’ bank accounts or their relationship with their client. Suddenly hundreds if not thousands of applications for particulars or further discovery vanished from the chambers’ lists of masters and district judges, and the Bear Garden was translated to its current status as a haven of peace, handling perhaps three or four case management conferences a day.
These tit-for-tat summonses are, I suggest, no great loss as a phenomenon, and were hugely wasteful of time, as were the convoluted summonses to strike out for want of prosecution, loyally defended and appealed by professional indemnity insurers.
Delay and costs
Should we be surprised that, as Michael Zander suggests, the CPR appear neither to have saved costs nor to have reduced delay? I cannot compete with Professor Zander’s over empirical evidence concerning delay, but anecdotally cases seem to reach trial quicker than 10 years ago and waiting lists have to a large extent dwindled. In my view, it is not surprising that costs and delay still exist, but this has little to do with the CPR.
Legal drivers
Two things drive litigation lawyers, apart from a proper professional determination to deliver best service to their clients:
one is the need to earn for their work; and
the other is to avoid professional indemnity claims.
To settle early on the basis of inadequate information may be injudicious: to settle before earning back the price of the referral fee paid to get the work may be financially unsound for the lawyer, even if it has nothing to do with the client’s desire for swift settlement. In truth there are other interests at stake here that might explain unresolved delay and expense.
Alernative dispute resolution (ADR)
The CPR and the Pre-action Protocols together intended to make settlement possible in a vast majority of cases before issue of proceedings, hence the requirement for front-loading work. Clients (both claimant and defendant) might thus hope for early resolution, and solicitors in particular for a cashflow benefit. Instead, despite the strictures in each Protocol (reinforced by CPR Pts 1 and 44.5) is the requirement to try ADR where orthodox settlement fails or is not tried.
There is simply no evidence that this requirement is being enforced at the allocation stage in issued cases.
Masters and district judges need to make an example in a few high-profile cases, one of which might perhaps reach the Court of Appeal, which can modify practice across the board by repeating the kind of expectations it articulated in Cowl v Plymouth City Council; Dunnett v Railtrack; Halsey v Milton Keynes NHST; and Burchell v Bullard.
What mediation offers at the pre-trial stage is a guaranteed opportunity for all decision-makers to come together to review where a claim has reached and to check whether they cannot or do not want to settle then, dealing with any communication breakdown so typical even now of litigation, and honestly reviewing and balancing the risks of ongoing investment of time and cost against any shortfall in available information—indeed often remedying that shortfall within the mediation process anyway.
Once litigation is under way in cases where this is necessary or pre-trial obligation to try ADR has been ignored by lawyers or procedural judges, courts can now without hesitation order ADR in the light of Sir Anthony Clarke MR’s emphatic view (evident at the Civil Mediation Council conference in 2008) that the Court of Appeal in Halsey was wrong and obiter in doubting whether such orders could be made against the wishes of either or both parties.
Professor Zander does not join Professor Hazel Genn’s 2008 Hamlyn Lectures’ strictures about the decline of civil justice, and whether the growth of ADR has any part in that, but in truth even his moderate gloom about the Woolf reforms doing more harm than good seems on balance to be a harsh view. If the Woolf scheme were to be delivered as intended by the courts, it would provide an even better system for parties keen for swift and affordable outcomes than at present, and it has always been a truism for Lord Woolf that it is for the benefit of litigants that our civil justice system must unswervingly be directed.
Tony Allen, solicitor and a director of the Centre for Effective Dispute Resolution (CEDR)
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