Spitting on the deck of the CPR

Unintended consequences are not necessarily unforeseeable. It was wholly predictable that the pre-issue obligations of the 1999 Civil Procedure Rules would shift the battleground to the front end of the litigation, and with obvious consequences in costs. As with the notoriously hard-fought US discovery process, if the rules give a weapon to the lawyers, then their duty is to use it. Lord Woolf seems a bit miffed, but has more to contribute to the debate than his reported attacks imply.

When Stanley Baldwin retired as Prime Minister and handed over to Neville Chamberlain, he promised “not to spit on the deck nor speak to the man at the wheel”. If Lord Woolf’s only contribution to the current debate were to come down from his lair every often and attack those who follow in his footsteps, then he would do better to stay at home. He has more to offer us than that.

Woolf recently attacked lawyers, judges and the government at a meeting of the London Solicitors Litigation Association, saying that they are all to blame for the fact that we have not seen the hoped-for reduction in litigation costs. Costs have in fact risen, putting litigation beyond the reach of all but the richest.

I was not there, and rely on the short report in the Law Society Gazette. I should preface what I say by noting that any third party report of Lord Woolf’s comments always paints him as more bellicose than his own writings seem to, which makes me wonder if the search for a good headline is driving a selective approach to the reporting – “We have made progress but that there is some way to go” would be a fairer summary of articles which Woolf writes for himself, but that lacks the confrontational element needed for a good story.

It is also worth making a few quick points in the interests of balance: there is room to concede that the rules themselves may be to blame for some of the problems – if they permit such conduct on the part of lawyers as Woolf alleges, then one must question whether the rules were as well-framed as they might be; the clients themselves might be induced to shoulder some of the blame; and most things are more expensive now than they were ten years ago. I don’t just mean that lawyers and others are charging higher rates but that the cost of providing professional services – salaries, rents and the burdens of an interventionist state are examples – has shot up in the last decade. None of these excuse what has happened to litigation, but they are factors missing from the brief report of Lord Woolf’s speech. The third of these needs no proving but might get forgotten; the others are elements in the calculations which it is convenient to ignore if your mission is to bash the most convenient targets. You will not get the crowds out defending any of Lord Woolf’s targets – lawyers, judges and governments; the clients are painted as the innocent victims, the Little Red Riding Hood in the story; and Woolf is unlikely to be over-critical of his own creation. Woolf himself is not blind to any of this, but, as I say, it makes a duller story than “Woolf lashes out”.

Woolf is reported as saying that lawyers have “made an industry” out of various aspects of the rules, and specifically in relation to the pre-issue stages, with letters for action becoming “packed with pre-action disclosures and other contentious things”. A central part of the Gazette report is the passage which reads:

He said litigation was intended to be used as a “last resort”, but this was “not generally the attitude of the profession”. Large city law firms “have not worked to reduce fees by going to mediation” he said, but have “snared business” in the “blackmailing situation of costly litigation”.

Well, if law firms have “snared business” out of costly litigation, I wonder where it is being fought. Certainly not in the High Court where, as Lawrence West QC put it in an article in The Times on 9 April 2009 “the number of civil actions begun in the High Court in the year after [the CPR] came into effect in April 1999 plummeted as if pushed off a cliff”. If that was the result of a game plan to “snare the business of costly litigation” it has not been a very successful one. Law firms, whether large city law firms or others (I wonder why Woolf picks on the one class of lawyer whose clients are able to dictate terms) may not be blameless, but they cannot be said to have used (or misused) the rules to bring new instructions their way. Nor was it the lawyers who imposed a whole new set of formal requirements which must be complied with before proceedings begin. It was not the lawyers, either, who were responsible for the fact that the pre-1997 White Book of 3833 pages now comprises nearly 6,000 pages plus various guides.

I suspect that the report in the Gazette does not do justice to what Lord Woolf said about judges: it says that “Woolf also attacked the judiciary for stalling his reforms by not managing cases properly and allowing ‘encrustations of case upon case’, until the CPR White Book has grown to 5 volumes.” Lord Woolf himself, I am sure, did not conflate the roles and responsibilities of the judges in the case management trenches with those of judges who initiate new legal rules. A quick glimpse of the old crystal ball in 1999 might have shown it as predictable that sweeping away decades of case law under the old rules plus the new discretion given to judges (Lawrence West referred sardonically to “the variable quality of the office-holder combined with wide areas of discretion that appeal courts will not review”) would generate a certain amount of “encrustation” – the scaffolding and sticking plaster used to remedy apparent defects in the shiny but flawed new structure.

Describing the CPR as “flawed”, incidentally, does not derogate from the achievement, and Woolf himself describes them as work in progress – “part of a process, not the completion of a journey” as he put it in an article in the Times in June 2009. One can admire the achievement but remain critical of the outcome – “C’est magnifique, mais ce n’est pas la guerre” as the French General Bosquet said as he helped cover the retreat of the survivors of the Light Brigade’s attack on the Russian batteries. La guerre in this context was the fight for access to justice. The Light Brigade charged down the wrong valley; we need to be more careful in our choice of target, and lashing out at all the other combatants is not the way forward – they are none of them blameless, but the aim (to borrow a phrase from criminal justice) is rehabilitation not punishment.

The counter-arguments or, rather, the balancing views, are set out in various posts on this site, most usefully in one called Informed comment in The Times adds to the Woolf rules debate which picked up on a letter from HHJ Charles Harris QC in The Times of 16 April 2009. That post, in turn, refers to my article about the views of Lawrence West QC in The Times the previous week. The subject is also covered in posts such as the following:

Zander sees his Woolf CPR predictions justified

Reforming Case Management

The CPR were a product of their time. That time has gone

There is another strand of debate, about compulsory mediation, which has also had a good airing here — see, for example, Mediation – not about just settlement but just about settlement and Woolf v Genn: the decline of civil justice , both of which cover the strong views of Professor Dame Hazel Genn QC on court-imposed settlement discussions. There has been a useful addition to that discussion in the recent Scottish Civil Courts Review which came firmly down on Professor Genn’s side of the debate, with the conclusion that, whilst the courts should certainly encourage mediation, it should not compel it. Amongst several quotations from Professor Genn in the Report is this one: “We should be facilitating mediation and educating people about the range of dispute resolution options … but once cases have been issued in court we should not be indiscriminately attempting to drive them away or compelling them, unwillingly, to enter into an additional process”.

The debate about compulsory mediation is one in which it is necessary to take sides — you are either in the Woolf camp or the Genn camp and I am firmly in the latter. The job of a judge is to get a case from issue to determination as quickly and cheaply as possible, helping parties towards a settlement if the opportunity arises, but not compelling them, as the rules presently provide, to try and settle on pain of costs penalties.

As to the rest, one could argue for or against the additional processes which were inserted into the litigation timetable in the CPR. They are not indivisible — there is a widespread agreement that Part 36 offers have been beneficial, for example. It is strongly arguable that much of the rest has caused work and expense which has not been compensated for later, save for the unmeritorious reason that the parties run out of money and are compelled to settle. One of the problems here is lack of any statistical evidence as to where the bulk of the costs is being incurred – this information appears in formal bills of costs, but these are relatively rare and their data is not accessible in a form which enables conclusions to be drawn from it.

There is little to complain of in the rules relating to disclosure, apart from the silly name which was given in 1999 to the process previously known as discovery. The definition of a disclosable document (one which is supportive of or adverse to your own case or the case of any other party) is a much more useful one than the old test of “relevance”. The rules, which are more properly seen as the parameters within which discretion must be applied, put proportionality at their heart — or would do, if anyone actually read the bloody rules. I would cheerfully sacrifice the compulsory role of judges as settlement social workers in exchange for more judicial time for case management, and in particular the management of disclosure. To the extent that Woolf is critical of case management, I am with him, with the proviso that it takes time to manage cases properly. The new pre-trial burdens do not weigh only on the lawyers; much judicial time is now taken up reading through the output from these new stages.

I have suggested above that we have no empirical evidence as to the relationship between the new hurdles which lawyers must jump over and any time or money saved as a result. We do not need much in the way of statistics to tell us that disclosure is a major component of cost, and not just in the big cases – it is just as oppressive in the smaller cases, pro rata to the sums at issue. The rules may need some refinement, which we hope to bring shortly with a new Practice Direction and e-Disclosure Questionnaire which is presently before the Civil Procedure Rule Committee. The proposed changes do not fundamentally alter the duty of disclosure, nor should they add much to the burden placed on the lawyers – they are already supposed to discuss with their opponents the sources of electronic data, and all that the Questionnaire requires is that they should set down on paper the things which should anyway be the subject matter of those discussions. The upshot ought to be that the components of proportionality – that is, the likely value of any step balanced against the estimated cost of undertaking it – will be more clearly set out for the judge. One might say that this is designed to be helpful to the judge; one might equally express it as a check to ensure that the judge will not be able to duck his obligations. Either way, the result should be better case management.

Lady Archer famously said of her husband that has “a talent for inaccurate précis”. I rather hope that the same is true of the Gazette’s report of this speech. Lord Woolf is certainly critical of the lawyers, judges and the government and he is right to be critical, but I think (from other things he has said) that he well knows that he has not simply been let down by those who should have been his allies. The strategy was his, and seems to have taken too little account of some unintended but wholly foreseeable consequences of that strategy.

There is a parallel between what he says about letters before action and the approach taken by US lawyers to discovery. The US rules provide for sanctions for lawyers who fall short of their discovery obligations. Two inevitable consequences follow. One is that lawyers will delve very deep in giving their own discovery – far deeper, often, than the needs of justice or objective common-sense requires – to make sure that they and their clients do not get sanctioned. The other is that they will do everything in their power to wrong-foot their opponents because litigation can be won, lost or settled advantageously by showing the other side to be in breach of their duties; because they can blow the enemy out of the water on a discovery motion, they feel duty-bound to try. Under the CPR, the letter before action and other pre-issue stages have become the opening shots in the battle; they are an opportunity to chase the enemy off the field before the main campaign, and one does not stigmatise all solicitors as making an “industry” out of this stage because they give it their best shot.

Doubtless some are as bad as Woolf says, but the suggestion that this is designed to drum up litigation business is a logical nonsense, and a decade of declining litigation would be the obvious result – if litigation was not in steep decline anyway for other reasons.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Access to Justice, Case Management, Civil justice, Court Rules, Courts, CPR, Discovery, FRCP, Judges, Litigation, Litigation costs. Bookmark the permalink.

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