The civil justice system was mainly designed to deal with problems or disputes between individuals or organizations. It is also a way for those individuals or organizations to achieve a fair solution when they have been harmed because of someone else’s negligence or malpractice. This is because, the civil justice system allows the defendant to hold others responsible for their actions. The burden of proof is primarily on the claimant who has to prove their care on the balance of probabilities. Over the recent years, there have been major changes in the civil justice system. For example, the courts and Legal Service Act 1990 made reforms after the Civil Justice Review in 1988.
In Lord Woolf’s Report, he stated that the Civil Justice System should be seen as ;
• Just in the results it delivers;
• Offer appropriate procedures at a reasonable cost;
• Be fair in the way it treats litigants; provide as much certainty as the nature of particular cases allows;
• Deal with cases at a reasonable speed;
• Be effective, adequately resourced and organized.
• etc.
This however, was not applied to in the civil justice system at the time. Therefore, Lord Woolf had then that the system at that particular time had failed to achieve these goals. Although it is possible that his failure is inevitable due to some of the aims conflict with others. However, a system that is based on solely on cost efficiency would make it difficult to justify claims form comparatively small sums, but these cases are very important. If they were to make the courts more accessible, it could lead to a flood of cases and that would make it near impossible to provide a speedy solution and keep costs at the low. However, a successful legal system must always aim for the best possible balance they can offer.
Some of the problems in the Civil Justice System are;
• Its too expensive;
• There are delays;
• Injustice solutions;
• Emphasis on oral evidence;
• The adversarial process;
• And many others.
ITS TOO EXPENSIVE
Lord Woolf’s review had found that in one case, one side’s cost exceeds that amount in dispute by over 40% of cases where the claim was for under 12,500 pounds. However, the least complex cases frequently caused the most elevated expenses in extent to the estimation of the claim. Due to the complexity of the process, lawyers are needed most of the time, therefore making the process more expensive.
THERE WERE DELAYS
The Civil Justice Review observed that the time between the occurrence giving rise to the case and the trial could be up to three years for the county courts and five years for the High Court. Because of that, time limits were laid down for every stage of an action but both the lawyers and the courts had disregarded them. Due to getting disregarded, long delays had place an intolerable physiological and financial burden on the victims and had undermined the justice of the trial, therefore making it more difficult to collect evidence. This was deemed unreliable because the witnesses had to remember the events that had happened several years ago.
INJUSTICE
Out-of-court settlements provide the advantage of a quicker end to dispute and is cheaper cost-wise. However, out-of-court settlements can be unfair and have an injustice solution.
THE ADVERSARIAL PROCESS
Through the adversarial process, many problems have been resolved which have encouraged tactical maneuvering rather than through cooperation. Tactical maneuvering would be a far much simpler and cheaper for each side to state precisely what is alleged in the pleadings, to also disclose the documents they have held, and to give the opposition copies of their witness statement. However, attitudes have appeared to be slowly changing. For example, some of the procedural rules on witnesses were changed and therefore there was a smaller scope for tactical maneuvering.
EMPHASIS ON ORAL EVIDENCE
Before April 1999, where reforms for the civil justice system was introduced, too much emphasis was placed on oral evidence at a trial . Now, in the 20th century, most of the information needed by the judge could be provided on paper and be read before the trial started. This is because oral evidence slowed down the proceedings by a lot, and therefore adding to cost and delays.
REFORMS
After April 1999, when the new Civil Procedure Rules came into force, the civil justice system has introduced the main recommendations that Lord Woolf had recommended. The reforms had aimed to eliminate any unnecessary cost, delay and complexity in the civil justice system. Lord Woolf himself had suggested that the reforms should have led to a reduction in the legal bills as much as 75%, although it might mean that some lawyers would have to work even harder to survive. The ultimate goal for these reforms is to change the fundamental of the litigation culture.
THE OVERRIDING OBJECTIVE
The Civil Procedure Rules has an “ overriding objective” of dealing with cases justly at proportionate costs. The courts must have regard to the overriding objective when exercising its powers under the Civil Procedure Rules and when interpreting it. All parties and their respected representatives are expected to help the court to further the objective and the court itself must further the overriding objective by case management. In the Civil Procedure Rule 1, it explains that active case management includes;
• Encouraging cooperation between the parties
• Identifying the issues at an early age
• Deciding promptly which issues need full investigation and trial and accordingly disposing the summary of others
• Deciding the order in which issues are to be resolved first
• Encouraging the parties to use an ADR procedure if the court considers that appropriate and facilitating the use of such procedure
• Etc
The emphasis of these new rules is to avoid litigation through pre-trial settlements. However, litigation is supposed to be seen as the last resort of things, with the court having to continue their obligation to encourage and facilitate settlements. Before the reforms, Lord Woolf had found it strange that the old system been mainly directed to the preparation of a trial, which is more expensive rather than a settlement, therefore he made the new rules put a greater emphasis on preparing cases for a settlement rather than a trial. A few of the new reforms are as follows:
• Civil Procedure Rules
• Disclosure
• Sanctions
• Court Fees
• Pre-Action Protocol
• Case Management
• Alternative Dispute Resolution
• Etc
CIVIL PROCEDURE RULES
Other than in relation to certain specialized forms of proceedings, for example, family proceedings, the Civil Procedure Rules now govern all proceedings in the Count Court, High Court, and the Civil Division of the Court of Appeal. The new Civil Procedure Rules are less complex than their antecedents, giving an expansive structure of general application as opposed to detailed guidelines covering every possibility. There has also been an attempt to write the rules in easy English, and therefore replacing the old, difficult terminology with easier and more understandable terms. With changing the language, Lord Woolf had hoped that it would help support a change in their attitude, which would be away from a legalistic, technical interpretation that was designed to give one party more advantage over their opponent, to an attitude that was more open and fair, following the overriding objectives of the new rules.
Almost all proceedings begin with a complain form. These complain forms have replaced the writs of the High Court and will summon for the county court and other specialist documents. Because this procedure starts from an action, it is undoubtedly less complex than the old system.
DISCLOSURE
Before April 1999 reforms, disclosure was known as discovery. The procedure for disclosure was to involve both parties providing the opponent with a list of all the documents, which is in relation with the action or case. The parties are then allowed to ask to view either some or all the documents even though the process is costly and time-consuming. Lord Woolf, however recommended that disclosure should be, for the most part, limited to documents that were already available and which material extent could affect or support a party’s case. This change could have significantly altered the disclosure process and rick going against the philosophy of openness between the parties.
SANCTIONS
Before the reforms, it was a basic principle that the loser of the case had to pay the winner’s cost (court fee, etc). Although this principle still exists in the new system, it is treated only as a starting point, which the court can easily depart from. This is where a party that has not complied with the court directions, particularly as to time, they can be penalized by being told to pay heavier costs, or by losing the right to have half or all of their cost paid by someone else.
COURT FEES
Over the last two decades, court fees have increased drastically. The aim for the increase of fees is that civil courts should be self-financing and managed according to business principles. The increase in court fees have been criticized on the grounds that they will deter many low income households from pursuing reasonable claims for justice. The Civil Justice Council, also known as the civil watchdog, has called upon the government to abandon its policy of making litigants pay almost the full amount of the civil court through the fees.
PRE-ACTION PROTOCOL
Pre-action protocols are used to push the parties into behaving reasonably during the pre-trial stage (Lord Woolf has recommended the developments of these pre-action protocols to lay down a code of conduct for this stage of proceedings). The pre-action protocols are a major innovation and aim to encourage four things. They are;
a) A more pre-action contract between all parties.
b) An earlier and fuller exchange of information.
c) An improved pre-action investigation.
d) A settlement before the proceedings can be commenced.
The courts endeavor to accomplish this through building up a timetable for the trading of information by setting models for the content of correspondence and giving schedules of reports that ought to be unveiled alongside an mechanism for conceding to a single joint expert. These pre-action protocols seek to encourage a culture of openness between the parties. However, pre-action protocols should also enable proceedings to run the timetable efficiently, if the litigation proves necessary. A compliance with a pre-action protocol is not compulsory but, if a party unreasonably refuses to comply, then this can be taken into account when the court makes an order for costs.
CASE MANAGEMENT
Case management is the most significant innovation of the April 1999 reforms. A case management means that the court will be an active manager of the litigation. The main aim of this approach is to bring cases to trial quicker and more efficiently. Traditionally, it has always been left to the parties and their lawyers to manage the cases, however the new rule has firmly place the management of the cases in the hands of the court and judges. The judges are given considerable discretion in the exercise of their case managements. By then, Lord Woolf has seen this change as allowing the legal professions to fulfill their adversarial functions in a more controlled environment.
ALTERNATIVE DISPUTE RESOLUTIONS
An alternative dispute resolution is a term that describes a range of methods of resolving legal disputes without having to recourse to litigation in the courts. The ADR usually covers arbitration, conciliation, mediation and many others. There is a similarity between these methods, and that is the absence of a judge, and there is no need for any lawyers to be present as well. These methods are usually less formal and more flexible when compared to going to a court room. However, arbitration is the most formal method among all and is typically used for resolving contract-based cases.
The advantages of ADR are :
a) it is quick and cost-effective
b) the parties retain control of their dispute
c) its informality and the lack of adversarial procedure helps to preserve
the parties’ existing relationship
and
d) it is confidential.
With advantages, there are always disadvantages. The disadvantages of using the ADR are:
a) Non-availability of legal aid
b) Lack of legal expertise
c) Imbalance of power
and
d) No system of precedent.
IMPACT
Based on two reviews from the Department of Constitutional Affairs, it has been said that the reforms by Lord Woolf were successful. Despite the fact that settlement, as opposed to litigation, represents various issues for a civil justice system, these issues have been to a great extent settled by Lord Woolf's reforms. Some of the positive outcomes that came from the April 1999 reforms are that it manages to deal with cases in ways that are more proportionate, for example;
a) With the amount of money involved;
b) With the importance with the case;
c) With the complexity of the issue;
d) With the financial position of each party.
Besides that, there has also been a decrease in the number of civil claims and an increase in the use of ADR. Litigation has also been less adversarial, less complex and more user-friendly, therefore, there were fewer delays in the new civil justice system.
They also managed to ensure that the parties are both on equal footing, and parties get to save their expenses as it is cheaper than they previous system. The courts also ensure that the cases are dealt with expeditiously and fairly and they have enforced compliance with rules, practice directions and orders.
Professor Zander, however, was a leading academic that felt that the reforms were fundamentally flawed. Professor Zander had felt that there were other reforms that could have also helped the civil justice system.
OTHER REFORMS
Besides the reforms that had already been done, there were a few others that could have been done as well. For example, they could have introduced integration. Integration is a proposal that was considered by the Civil Justice Review, which pointed out that the two-court system was inflexible thus making it difficult to make rational allocations of judges and the administrator’s time between the different courts. Paste your essay in here…