Wholesale changes to the English civil justice system go into effect.

• Author: Highley, Richard

From the defence perspective, the effect of the Woolf reforms is to move the pendulum significantly toward plaintiffs

A wholly new set of procedural rules governing civil actions in England went into effect on 26 April 1999. Intentionally or otherwise, the new rules have swung the pendulum significantly in favour of plaintiffs.

The Civil Procedure Rules (CPR) replace the existing rules for both the High Court (generally higher value claims) and the County Court (generally smaller value claims). They do not "tinker" with the existing system; they rewrite it. Cases relevant to the existing rules will, from 26 April, no longer be good law.

GENESIS AND CREATION

The new rules trace their lineage from the time in 1994 when Lord Woolf, then sitting in the Court of Appeal, was asked by the Lord Chancellor to report on the rules and procedures of the civil courts. He was assisted by an inquiry team and several working groups, and in 1995 he released his interim report, Access to Justice. There then was a one-year period of consultation, during which he visited Australia, Canada, Hong Kong and the United States and attended many conferences and seminars, as well as receiving written comments from organisations and individuals, including the judiciary, solicitors and other professional groups.

Lord Woolf, now master of the rolls, published the final Access to Justice report in June 1996. That report concluded, "The key problems facing civil justice today are cost, delay and complexity."

A separate working group was responsible for drafting the rules implementing the report's recommendations, and the rules were given force of law by statutory instrument, which is a form of delegated legislation made by an act of Parliament.

In resolving the key problems identified in Access to Justice, the new rules place enormous emphasis, backed by widesweeping judicial powers, on encouraging settlement and early trial. In doing so, the rules potentially turn the English justice system in many, but not all, ways into a "plaintiff's game." There are now compelling incentives on a defendant to settle early rather than risk going to trial.

This article principally considers some, but by no means all, of the tactical considerations for defendants. It is written from the perspective of the defendant in larger or more complex claims, although many of the issues discussed apply to all types of cases.

One of the intriguing questions now facing English lawyers is how judges will apply the new CPR? Davies Arnold Cooper already has seen widely differing approaches by judges to case management. Some are wholehearted converts to the new regime, keen to apply the CPR in every way. Others show a marked reluctance to change their approach to case management. But one has to assume that the new rules eventually will be applied by the courts.

MAIN OBJECTIVES

All Lord Woolf's general recommendations, despite the views expressed by initial critics of his report, have been incorporated in the new rules and neatly summarise the main objectives of the CPR. They are collectively intended to address "the key problems facing civil justice today [of] cost, delay and complexity". In his foreword to the CPR, Lord Irvine of Lairg, the present lord chancellor, states that the essence of the reforms is the "overriding objective of enabling the court to deal with cases justly" and that the changes introduced by the CPR "are as much changes of cultures as they are changes in the rules themselves."

The main recommendations of Lord Woolf, now reflected in the CPR, are:

* Judges will actively manage cases, and they have been given the powers to do so. Time may not be extended automatically by agreement of the parties.

* Cases will be allocated to three tracks: (1) small claims, cases up to 5,000 [pounds sterling]; (2) fast track, cases between 5,000 [pounds sterling] and 15,000 [pounds sterling], and in a standard case this will mean 30 weeks to trial with fixed trial costs at 350-750 [pounds sterling]; and (3) multi-track, all cases over 15,000 [pounds sterling], together with more complex cases--for example, cases with more than one day estimated for trial.

* Pre-action protocols require exchange of information between parties about their cases before the commencement of proceedings, backed by sanctions for breach.

* Alternate dispute resolution is be encouraged wherever possible.

The overriding objective in Part I of the CPR is the acid test to be applied when interpreting any of the rules, namely, to deal with the case "justly," which includes (a) ensuring the parties are on an equal footing, (b) saving expense, and (c) dealing with the case in a way which is proportionate to the value, importance, complexity and financial standing of each party.

The importance of the "overriding objective" is referred to repeatedly in the wording of individual rules in the CPR. Every decision taken by judges on case management issues is now subject to the overriding objective. Rule 1.2 states that the court must "seek to give effect to the overriding objective when...