|
Justice For
All - The Civil Reforms
The biggest
change in civil justice in the last 100 years took place on April
26th 1999 when the Civil Procedure Rules produced by Lord Woolf
came into operation. The aim of the new Rules is to provide justice
that is both quicker and cheaper. The question is, are these Rules
likely to succeed and how will they effect members of the public?
The biggest
change in civil justice in the last 100 years took place on April
26th 1999 when the Civil Procedure Rules produced by Lord Woolf
came into operation. The aim of the new Rules is to provide justice
that is both quicker and cheaper. The question is, are these Rules
likely to succeed and how will they effect members of the public?
The new Rules
provide for a system which encourages the settlement of disputes
with the aim of providing faster compensation for a Claimant and
lower legal costs.
One of Lord
Woolf’s major concerns was that under the old system legal
costs were often greater than the compensation awarded to the injured
party. The over-riding objective of his reforms therefore is to
ensure that cases are dealt with fairly and expeditiously and, most
importantly, in a way which is proportionate to the amount of money
claimed.
Courts will
have greater control of the litigation process. They will be dictating
a timetable for a case, determining the requisite level of investigation
and monitoring expenditure.
Dealing with
claims
When an action
is commenced, a very detailed letter of claim is sent to the other
party setting out the exact nature and circumstances of a claim
and why we believe the other party is at fault, together with the
full extent of the injury and losses incurred. Defendants will have
3 months to investigate the claim and to indicate whether they admit
or deny fault. If an admission is obtained from a Defendant then
they are bound by that admission for any claim up to a value of
£15,000. If the Defendant denies liability, he must now give
full reasons for his denial. This will greatly assist member’s
claims as we will now be provided with substantial information about
the Defendant’s case at a very early stage. This will enable
us to assess the merits of a claim much earlier on, particularly
as Defendants will now be obliged to disclose their relevant documentation
prior to Court proceedings being commenced.
In a personal
injury claim, the Claimant will at the same time nominate a medical
expert who we will instruct to prepare a medical report on the injuries
sustained. The other party may agree or object to our choice, but
if they object they must give valid reasons. If no objection is
received, the Defendant will normally not be permitted to obtain
their own expert report.
Issuing Court
proceedings
If the case
cannot be settled at the above stage, Court proceedings will still
have to be issued. However, this is now seen as a weapon of last
resort. When cases have been issued each case will be allocated
to a particular "track" by the Court. There are three
tracks which are:-
The small claims
track, for cases worth less than £1,000 in personal injury
matters and £5,000 in all other cases.
The fast track,
for cases worth less than £15,000 and where the Trial will
last no longer than one day.
The multi-track,
for cases worth more than £15,000 or those which are especially
complex.
The fast track
aims to provide a quick and simplistic procedure for resolving cases.
The Courts will seek to manage the case to encourage parties to
narrow down the issues. Trials will be listed within 30 weeks of
allocation and will not last for more than one day. No oral expert
evidence is likely to be allowed.
In cases allocated
to the multi-track where the Courts will still keep strict controls
on the progression and expense of cases by way of active case management.
In mullet-track cases Trials will last longer and there will be
allowance for oral evidence, but parties will still be expected
to co-operate and agree what expert evidence they can.
The role of
the expert
One of the problems
with the old procedure was that each side would build up a team
of experts which could cause delay and significantly increase the
costs of a case. Lord Woolf’s reforms are aimed at limiting
the experts involvement so that in fast track cases no experts will
give oral evidence at Trial and in mullet-track cases it is highly
unlikely that there will be more than two or three experts, even
in the most complicated cases. Under the old Rules, it was felt
that experts had become too partisan by always maintaining their
client’s own position. The new Rules promote a sense of co-operation
between the parties’ experts whose over-riding duty is now
to the Court and no longer to the party that has instructed that
expert. What this means is that the expert will no longer be able
to alter their reports at the request of a client and their opinion
will be final and binding.
Offers to settle
The Rules have
introduced an important new weapon to the Claimant in the form of
"Part 36 Offers". Unlike before, a Claimant can now make
a formal offer to settle to the other side on the issues of liability
and/or damages, even before proceedings are commenced. The penalty
on a Defendant for not beating a Claimant’s offer is in terms
of interest on damages and costs. This new weapon puts great tactical
pressure on the opposition and will be of great advantage to individual
Claimant’s.
Will justice
be done?
Lord Woolf’s
reforms are aimed to ensure that Solicitors are encouraged not to
spend too much time on lower value cases. Whilst it can be understood
that it is wrong that legal costs exceed the level of compensation,
it is inevitable that some injured people will not be able in future
to pursue their claims to the same extent that they did before because
they may be of low value. For example, the Courts may not allow
the necessary level of investigation and preparation to be carried
out. Effectively, this may restrict access to the justice that the
Rules are seeking actively to promote. It is to be hoped that the
new Rules will encourage the insurance industry to investigate claims
properly, to admit fault more promptly and to bring about cases
to a swift conclusion. Approximately 85% of cases settle prior to
starting proceedings. If those cases can be settled within six months
to one year then the new Rules will certainly have achieved a positive
result. The anxiety is that those cases which proceed through the
Courts, particularly in the fast track, may find too heavy a restriction
on the level of investigation and evidence that can be produced
to support the claim.
Preparing for
change
Russell Jones &
Walker have been at the centre of reform through our involvement
in the Association of Personal Injury Lawyers and the Law Society
to ensure that individuals’ interests are protected. We have
developed a new case management computer system to ensure that we
obtain maximum assistance from information technology to comply
with the new Rules. Over the next year or so the law will be developed
as the new Rules come into play and I hope to keep you informed
as to how the Rules are actually working in progress
|
