The last entry in this column consisted of the comments of Mr. Chris Philipsborn, head of the parliamentary unit at the British Law Society, with regard to the Woolf Report, presently under consideration by the recently elected Labour government. The report, which suggests drastic changes in the British legal system, has not received kudos from everyone who has considered it. Some, including Michael Zander QC, a professor at the London School of Economics, contend that it will create more problems than it will resolve.

Although the report has precipitated considerable E-mail comment from visitors to this site, most points of criticism are touched upon in an article by Professor Zander which appeared in the New Law Journal, reviewing the recently published Reform of Civil Procedure - Essays on 'Access to Justice, a 450 page book of twenty-two essays responsive to the Woolf report. The essays are authored primarily by academics, experts in their fields, Professor Zander included. Part two of Professor Zander's comments will be placed on site on June 20, 1997. In the interests of space, introductory comment and attribution of points made in the book to the various essayists, have been omitted, but are available upon request. Essay references are contained in inner quotes.

Professor Zander's review is as follows:

"So far, most of the reaction to the Woolf proposals has been very positive. By contrast, I have from the outset taken the view that implementation of the Woolf proposals would make matters distinctly worse. What I had not expected was that others would have either shared my fears or have expressed other serious concerns about Lord Woolf's proposals.

What follows is the identification, in summary, bullet point form, of the main points made in the book regarding the proposals. (A small number of the essays deal with other related issues, such as legal expenses insurance.) The objective is to give the flavour of the contributions but, needless to say , it does not purport to do justice to the wealth of analysis and argument in the book. The order follows the order of the contributions.

*Implementation of Lord Woolf's central idea of case flow management (CFM) is 'likely to be very difficult indeed and in the event may fall well short of achieving the intended objective unless structural issues are tackled and dealt with properly'.

*Transplanting foreign models is difficult. CFM was introduced in the US to deal with the problem of backlog in criminal cases where there is little interlocutory work. In the US the judges are in charge of the running of the courts. In England the running of the courts is mainly a matter for the executive. 'The key to CFM is judicial commitment and control. This concept is not likely to find favour within an executive-based court service'.

*It will be essential to have a massive computerized management information system (MIS) with information about the status of each case.

*Unless the courts are able to deliver their side of the system, CFM will fall into disrepute. English practitioners and judges are very skeptical about the ability of the courts to deliver a quality CFM system.

*The legal profession will have to be involved in the development of the system. The support of the legal profession is crucial.

*The sanctions applied to make the system work have to be clear, credible, applied consistently and proportionate to the transgression. Hitherto the courts have been uneven in enforcing court rules.

*Lord Woolf calls for lawyers to be less adversarial and more co-operative, whereas they seem to becoming more 'rights assertive', more partisan and aggressive in serving their clients.

*CFM systems threaten the integrity of procedural law. Sometimes the efficiency aims of CFM and the aims of procedural law conflict. Procedure concerns 'process values' or 'principles of natural justice'.

*CFM systems require judges to make decisions which have an important effect on the litigation on inadequate information, often untested, and without being required to give detailed reasons.

*'It is generally accepted that care has to be taken to ensure that a case is not tried by a judge who previously has learned of matters that ought not to be known to a trial judge'.

*Lord Woolf's policy of simplification of procedure and court control of litigation 'has the potential of rendering the civil process less susceptible to procedural manipulation and waste, [but] it risks being thwarted by the adverse incentives that the legal profession will enjoy'.

*'A system in which the courts continually have to pitch themselves against the professional instincts of lawyers is bound to be inefficient.' Lord Woolf's proposals are open to this objection - e.g. that pleadings should be simple, that witness statements should be no longer than is necessary, that lawyers should be more co-operative by agreeing issues that can be agreed, that discovery should be restricted, etc.

*Nevertheless the Woolf report 'lays a sound foundation for an effective and flexible system of adjusting procedure to the requirements of the dispute in question' especially through the concept of the fast-track procedure where the principle of proportionality through fixed costs is dominant. This could work , as it does in Germany.

*Proportionality in procedure is not a challenge to the adversarial system any more than time limits or summary judgment are.

*Implementation of Woolf will make the system less rather than more efficient. Judges have no relevant management skills. This might be cured by training if the judges had any appetite for management, though this would be costly and one has to be skeptical whether most judges will take to it.

*More important, much of the additional pre-trial activity proposed by Lord Woolf in the interests of cutting cost and delay would be likely to generate greater delay. This would be true especially in multi-track cases. Thus, for instance, experience suggests that pre-trial hearings designed to shorten trials and cut down costs tend to have precisely the opposite result.

*To impose a significant measure of pre-trial case management is unnecessary and therefore wasteful in most cases since 97 per cent of cases settle without such intervention.

*Even in fast track cases, Lord Woolf is proposing a great deal of new add-on pre-trial process. Thus, in all cases where a defence is entered, the procedural judge would have to allocate the case to the appropriate track, to consider whether the pleadings were in proper form and whether to vary standard directions, to play a pro-active role in pre-trial process, to deal with applications for extra discovery, to decide what witnesses can be called and cross-examined on the content of witness statements. The extra cost would fall both on the system and on litigants.

*Lord Wolf is relying mainly on American models of case management without taking account of the fact that there is little, if any, evidence that they have worked there.

*The judge inevitably knows less about the case than the parties. It should not be assumed that judicial intervention designed mainly to 'move things along' would necessarily be well attuned to the needs of the case or that it would necessarily be welcomed by litigants.

*Research suggests that litigants are more concerned about fair procedures than about delays. It is by no means certain that they will consider the abbreviated procedure on the fast track as consistent with fair procedure.

*The Woolf Report states that in making decisions about the application of the new rules of court, the courts are to be asked to deal with cases 'justly' - which includes having regard to such matters as 'inequality between the parties", "saving the parties expenses', 'handling the case in ways which are proportionate to the amount of money involved, to the importance of the issues, and to the parties' financial position' and 'allotting an appropriate share of the court's resources to the case while taking into account the need to devote resources to other cases'. These are entirely novel considerations for courts.

*Under Woolf's proposals there would be less open justice with more work done in chambers, over the telephone or by fax. Case management conferences should be held in open court; witness statements and judgments delivered in chambers should be made available to the press; all of the public documents should be stored on disc and be available to the public on payment of a fee.

*Woolf says that litigation is too expensive for people to embark on. The evidence for this proposition seems to be more anecdote. Between 1971 to 1981 the number of proceedings started in the QBD and the county courts rose from 1.7m to 2.3m - a rise of 32 per cent. Between 1981 to 1991 they rose to 4m - a further rise of 78 per cent. (The population rose in that period by 3 per cent.) Between 1992 and 1994 the figure fell to 2.8m, a drop of 31 per cent over three years. The rate per 100,000 of the population seems to be similar to that in the US.

*Abbreviated discovery, shorter preparation, fixed costs, limited hearing time and restrictions on calling, examining and cross-examining witnesses (which under Woolf would apply both to fast track and multi track cases) will make finding the truth materially more difficult. This is too a high price to pay.

*Woolf's proposal that discovery of adverse documents should be restricted to those of which the party is aware at the time puts a premium on forgetfulness, is unworkable for corporations and would be difficult in practice to challenge.

*Sir Jack Jacob, doyen of English proceduralists, says that the passive role of the English court greatly enhances the standing, the influence and authority of the judiciary at all levels and may well account for the high respect and esteem in which the judges are held. Woolf wishes to abandon this passivity, both pre-trial and at trial not only to marshall the case but to control the quantity and quality of evidence received by the court. That would imperil the court's impartiality.

*Practitioners, disliking 'being pushed around by over-zealous, fussy or even ill-motivated and tyrannical judges', will engage in judge shopping.

*To give the judge the power, as Woolf suggests, 'to formulate the real issues in the case' is to raise the risk of judicial meddling and the appearance of bias.

*Wolf says that 'the philosophy of litigation should be primarily to encourage early settlement of disputes'. But settlements can be unjust and the result of coercion. The court should not engage in trying to get parties to accept less than the law provides. Moreover, issues of public importance should not be brushed under the carpet."

(To be continued.)

Mr. Carrow reserves sole discretion in determining the matter to be published on this page.