Viewpoint

The debate on the effectiveness after 10 years of Lord Woolf’s procedural reforms needs to be seen in a wider context. The complexity of procedure and its cost are responsible for the severe decline in access to justice.
Reducing cost was of course one of Lord Woolf’s chief aims. In this he has  failed. Unfortunately, as Michael Zander has convincingly demonstrated, the laudable attempt to introduce a transparent “cards on the table” culture has backfired (see NLJ, 13 March 2009, p 367). In the 60s and 70s, when I represented large numbers of trade union members and others in personal injury claims, the majority were settled at an early stage before any substantial preparation was done, and costs were correspondingly modest. Compensation claims were—and still are—handled largely in solicitors’ offices and never reach a barrister’s chambers, let alone the court. By promoting unnecessarily detailed preparation of cases before settlement—“front loading”—Woolf ignored the reality of the solicitor’s role in dispute resolution.

Similarly, by recommending more intrusive judicial management of the litigation process, he underestimated the ability of the experienced litigation solicitor to pursue the client’s best interests. There was no need to extend the supervisory role of the court, again increasing cost. The court is better used as a  last resort or fallback resource than a managerial tool. The primary focus must be on the parties and their representatives who know their business best.

Of course the argument is not all in one direction. Woolf was not just about cost cutting. It was also about diminishing a culture of concealment and trench warfare. And undoubtedly thoroughness of investigation and research, partly the product of a separate specialised Bar, are benefits of our system which contribute to the popularity and marketability of British lawyers throughout the world. It would be a pity to throw them away just to save money. But can we retain these virtues and achieve equal access to justice and a level playing field in our domestic courts? That is the dilemma which remains to be tackled.

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