Woolf does justice to system - What the final report proposes

Everyone with an interest in Britain's system of civil justice - which probably includes most (willingly or otherwise) in the construction industry - will by now have heard of Lord Woolf's investigation into the shortcomings of the present system and his plans for root and branch reform.

Lord Woolf's final report, published in July, fulfils the expectations created by his initial proposals on which I reported in CJ last year and promises a revolution, which will enormously improve the lot of all users of the system. It will also I believe change arbitration for the better.

Comparisons with Sir Michael Latham's report are inevitable. Like Sir Michael, Lord Woolf advocates prevention rather than cure and seeks an end to adversarial attitudes. He too has included in his report a plea for his recommendations to be implemented as a whole.

On the other hand the signs are that, by contrast with Sir Michael, Lord Woolf's request will not fall on largely deaf ears. The Lord Chancellor is committed to reform and his response, expected in the Autumn, is likely to be positive.

In the meantime some judges, notably Official Referees, have already begun to implement Lord Woolf's ideas where current rules permit.

Lord Woolf's report follows a massive consultation exercise during which he and his enquiry team tramped across England and Wales (Scotland's very different system falls outside his remit), addressed seminars - including one at McKenna's - and talked to an impressive cross-section of practitioners, users and other groups.

If his recommendations are implemented, says Lord Woolf, "the landscape of civil litigation will be fundamentally different from what it is now". To create this new landscape, Lord Woolf has put forward a number of key principles and backed them by a total of 303 detailed recommendations.

His key principles include the active avoidance of proceedings (for example through a new system of pre-litigation offers backed by sanctions and legal aid funded ADR), a decisive shift in the control of litigation from the parties to the Judge and a level playing field between the parties.

The Official Referees' specialist jurisdiction, with a number of others, will survive this streamlining process. In his initial report Lord Woolf praised the work of Official Referees and his final report endorses this view.

As for arbitration, this is bound to be influenced by Lord Woolf's recommendations. More power to the Judge should mean more power to the Arbitrator who has in the past struggled to control the parties and their platoons of advisers.

Now, already boosted by the 1996 Act, Arbitrators have a new armoury of judicially-approved weapons with which to equip themselves.

Inevitably, there are concerns. Many judges would say privately that they did not sign on in order to become managers and Lord Woolf's enthusiasm for IT and project management techniques will not be echoed by all of them.

Some are already inclined to shoot from the hip and may see the Woolf reforms as a licence to indulge their instincts to the full.

There is a risk that too many corners may be cut in the interests of court turnover although Lord Woolf is surely right to argue the merits of a workable system accessible to all against a Rolls Royce available only to a few.

Finally, what will all this cost? "Not much", is Lord Woolf's reply, once savings through reduced litigation, earlier settlements and greater court efficiency are taken into account.

Lord Woolf accepts that more resources will be required especially for training and IT although his emphasis on the delivery of new IT solutions through PFI may bring a wry smile to some faces.

Perhaps sponsorship is the answer. Why not, one wag has suggested, the Virgin Royal Courts of Justice or the B&Q Leeds Crown Court - or what about involving Benetton, notorious for its hijacking of serious issues for marketing purposes? Somehow, I don't think so. The issue of resources will however not go away and may yet prove the biggest obstacle to what should be an unstoppable tide. Among Lord Woolf's detailed recommendations are the following:-

l Robust hands-on case management by judges - there would for example be early case management conferences attended by clients as well as lawyers for which the parties would have to produce details of key issues, cost estimates and proposed witnesses and at which ADR would be canvassed.

lFirmer procedural time limits backed by sanctions including the widespread use of immediate costs orders.

lA cost-benefit analysis of all requests for major procedural moves, such as demands for additional disclosure, with scope for the wealthier party to pay both side's costs of an expensive procedure which he wants to see applied.

lOffers to settle available to both sides at any time without the need for payments into court and backed by additional interest and costs awards if not accepted.

lThe replacement of the present Order 14 procedure by an expanded summary judgment regime enabling either side or the Court to seek early judgment or the dismissal of a claim on the basis of a more relaxed test to increase access to this remedy.

lDisclosure generally limited to relevant documents of which a party "is aware", with rules for the operation of this principle to corporate entities.

lExperts to act as independent advisers to the Court with wider scope for the Court appointment of a single expert, provision for experts' meetings in line with current OR practice and a requirement for all expert's instructions to be made public.

lA costs regime requiring legal advisers to provide costs estimates and information and the Court to notify clients direct of costs orders.

lA general streamlining of all court systems and procedures to make them more user friendly, especially to the litigant in person, together with ambitious plans for the widespread use of IT and telephone and video conferencing.