No sooner had I published my post Have the Woolf reforms worked? yesterday when Jonathan Maas flicked me a link to an article in Times Online on the same subject. It is called Sad and unsatisfactory – but not destroyed and is written in his personal capacity by His Honour Judge Charles Harris QC, the Designated Civil Judge for Oxford. Like me, Judge Harris was reacting to an article in the Times of 9 April by Lawrence West QC.
Judge Harris is chairman of the civil committee of the Council of Circuit Judges. I came across him when he was the able convenor at a kind of judicial boot camp last Summer. HHJ Simon Brown QC and I were invited to speak there about electronic disclosure to an audience which included the Master of the Rolls.
The focus in Judge Harris’s article is on the greatly increased complexity seen in the last decade, much of it not merely unnecessary but counter-productive. We have not only seen a great deal of new law, but statute draftsmen seem to have lost the ability to write succinct unambiguous law. The CPR and their Practice Directions have grown in volume (that is, pages), in detail, in prolixity and in their implications for practitioners. The remedy, Judge Harris says, is “greater simplicity, with less prescription and preparatory paperwork”.
We live in complex times and it is no doubt necessary to embrace a wider range of topics these days. Much of this complexity, however, derives from a kind of iterative and upward-moving loop. Life is more complex, so more complex rules are required. They in turn increase the complexity of life and generate the need for more sophisticated solutions, and so it goes on. We have a government keen on micro-management and a civil service which excels at job creation – more jobs for civil servants, I mean, not productive jobs. The expansion of the physical size of the CPR matches that of the tax legislation over the same period.
There is a cost attached to all this and it is paid in the high court fees to which Judge Harris refers (which, as he points out, are nothing to do with Woolf), and in extra burdens falling on those who have to deal with the courts. Furthermore (and this is a point of mine not of Judge Harris) the money goes on the civil servants in the back-room and not on the customer-facing people and systems. As with the tax regime, there are ever more people generating burdens and obligations whilst ever less money is spent on those who deal with the public in both the administrative and judicial functions.
It is easy enough, as Judge Harris would accept, to call for greater simplicity. As I said in my own article, we cannot simply wind back to the “years of experiential, incremental development of procedure” whose abandonment Lawrence West lamented. We have, as Judge Harris points out, 5,827 pages of rules and 287 pages of guidance which direct the principles and the minutiae of the practice and procedure, and which judges and practitioners are bound to follow. We cannot just throw it away – we might be tempted to throw it at someone with a hefty thud, but the fact is there is no one target for our frustration. Lord Woolf’s recommendations were as much a reflection of the prevailing view at the time as his own work (and, in the field of discovery, much of what he recommended was ditched anyway). Parliament passed the CPR into law, the then senior judges set their stamp on them, and their successors, several generations of the Rule Committee, and all those civil servants have tweaked and prodded them; they have had a decade of judicial interpretation. Their improvements – and the rules are in constant review, much of it for the better – inevitably add to, rather than reduce, the page count. I am myself party to some proposed additions on the disclosure front, which may appear to undermine an argument that better must mean less – it does not in fact; that depends on what you ditch, what you add and what you fine-tune.
The government has other pre-occupations – survival to its full term, for example. As my article pointed out, we already have two reviews pending – that of Lord Justice Jackson, specifically on the costs regime which Judge Harris is right to emphasise, and that in hand by the Civil Justice Council. The present corps of senior judges are working to improve what the civil servants would call “service delivery” – my article about taking the Administrative Courts to the regions gives a good example of this. There are constant debates at various levels of the judiciary as to ways of improving matters within the constraints of budget and the existing primary rules.
Each of us, no doubt, could pick on something which we would scrap tomorrow. Judge Harris lights on the pre-action protocols – “135 pages of detailed and highly prescriptive codes with which a litigant is supposed to comply before starting litigation, with potential sanctions if not followed”. Many, including me, would join him in that. I would undo ten years’ worth of emphasis on encouraging settlement (see Mediation – not about just settlement but just about settlement) with a sentence reading:
Whilst a judge’s duty includes trying to promote settlement between the parties, his primary obligation is to get the matter to a hearing in the shortest time and at the lowest cost possible and he may dispense with or vary any obligation imposed by these rules to comply with that objective.
I know, I know – that walks straight into Lawrence West’s point about how the “variable quality of the office-holder is combined with wide areas of discretion” – a polite way of saying that some judges cannot be trusted to find their bottoms with both hands without precise directions. It also conflicts with my view that what parties need is enough judicial consistency to be able to play the probable outcome of an application into their preparations and their negotiations. Most judges are clever, conscientious people, acutely aware of the importance of their management role. Wherever the answer lies, it is not in 5,827 pages of rules.