An article in the Times of 9 April had the title Have the Woolf reforms worked? Written by Lawrence West QC, it makes an uncompromising start with the assertion in the first paragraph that “the reforms — known as the Civil Procedure Rules (CPR) — have been a disaster for the civil justice system”. The right to access to justice is “illusory” and, judged by this standard, “the CPR have been an abject failure”.
West quotes some figures in support of his view that the number of civil actions in the year after 1999 “plummeted as if pushed off a cliff”. The statistical evidence is supported by this more anecdotal statement:
“Before the CPR, the corridor outside Court 12 in the Royal Courts of Justice, the Bear Garden and the Master’s Corridor heaved with lawyers and their clients waiting hearings. Those places have been wastelands ever since.”
You can guess at my support for this viewpoint from the fact that I long ago chose to give the title “The Empty Bear Garden” to my keynote speech for the 8 June Ark Group e-disclosure conference Practical Guidelines to e-Disclosure Management. The Bear Garden is a space in the RCJ at which several corridors, staircases and doors intersect. It has become a gauge of court activity, like a cardiac monitor in a hospital drama. A cardiac monitor makes a noise, however, when it is flat-lining.
West refers to “The wholesale abandonment of years of experiential, incremental development of procedure”. Many changes were “unnecessary and cosmetic”. The core of his arguments is that “The erosion of access to justice has been caused by two central features: the front-end loading of the expense of litigation and the over-involvement of the judiciary in managing cases”.
I part company with Lawrence West in his wholesale condemnation of judicial case management which, in his view, substitutes the knowledge of a judge who has just skimmed the papers (I paraphrase, a little) for that of the practitioners who have an intimate grasp of the detail. I am with him, however, when he talks of “the variable quality of the office-holder [when] combined with wide areas of discretion that appeal courts will not review”.
It is not the principle of close judicial case management which is at fault but the excessive amount of case preparation which must be managed and the lack of judicial training to cope with it. There are good judges and less good ones, but their variable quality, at least as to electronic disclosure which is the area of my concern, follows almost inevitably from their understandable lack of experience and knowledge in what is involved in this, one of the most expensive aspects of case preparation.
I do not agree with West’s conclusion that “Only when parties manage cases and judges decide them will access to justice be restored” or, at least, I agree with it only in an idealised sense which depends on a cultural change in lawyers which will not come without external management. It is like sentences beginning “Only when the sun shines every day…” or “Only when politicians choose honesty over self-interest…” – it ain’t going to happen.
It is beyond the scope of Lawrence West’s short article to make specific suggestions as to what must change. He clearly is not arguing for the CPR to be torn up and the old Rules of the Supreme Court to be restored. 2009 will see a review of the Woolf reforms under the aegis of the Civil Justice Council, in addition to Lord Justice Jackson’s review of litigation costs. I do not sense wide support for a wholesale re-write of the rules. I am obviously not impartial in this, but I see an attack on disclosure as the most purposeful way forward – nothing drastic, just the more rigourous application of the existing rules, bolstered by the Technology Questionnaire and new Part 31 Practice Direction which we – Senior Master Whitaker’s drafting group – have in hand.
West’s focus on the role of judges is correct – it has been mine since my very first published article on discovery in February 1993. What I advocated then, and still do, is more active management not less, but not by imposing on the parties any new and more onerous preparation than they should be doing anyway – I am as alert as anyone to the downside of unnecessary up-front costs.
There is, however, nothing unnecessary about making an early assessment of the scope of the task ahead – its mere quantity and its likely cost as well as its probable outcome. There is no clear understanding by judges that disclosure is not a seamless process, but a staged and often iterative one which requires a frank and objective view as to what is really needed to find justice. West’s adverse view of the vagaries of judicial discretion is right to the extent that the absence of consistency makes it impossible for parties to judge what position they can reasonably take vis-à-vis their opponents – they need the context not so much of precedent in the formal sense but of a reasonable expectation that one judge will behave in broadly the same way as another – at least to the extent of knowing that the Practice Direction to Part 31 CPR actually exists.
Until that happens, the Bear Garden will remain empty.