This is the third of a series addressing changes in the English law proposed by the Woolf Report, legislative implementation of which is being considered by the recently elected Labour government. The initial comment on the issue consisted of the observations of Mr. Chris Philipsborn, head of the parliamentary unit at the British Law Society. This was followed by Part 1 of a review by Michael Zander QC, a professor at the London School of Economics of Reform of Civil Procedure - Essays on 'Access to Justice', recently published.

Other thoughts on the subject, which might aptly be described as the Americanization of the English law, will be placed on line July 5, 1997. It is to be kept in mind that Professor Zander is reviewing the essays of 22 experts in their fields, some of whom concur with Lord Woolf's conclusions, and some who disagree. References to statements contained in the esssays under review are indicated by inner quotes. The essayists' names have been omitted in the interests of space, but are available upon request.

The following comments will complete Professor Zander's review:

"Lord Woolf's proposal for expansion of the small claims system is premised on the view that there must be better training for district judges, a more consistent judicial approach and better information, advice and support of litigants. 'On these questions, as on many others raised in the Inquiry, Lord Woolf emerges as a man who is to a quiet remarkable degree optimistic and self-confident. But one wonders whether his optimism might be misplaced' Scepticism is increased by the vagueness of Woolf's discussion of the resource implications of his report.

One must seriously doubt whether the rough and ready approach adopted by district judges for small claims will prove acceptable where much larger sums are at stake. 'It is surely a mistake to assume that district judges will be able to perform just as competently when they are obliged to take on growing numbers of more complex small claims where higher sums of money are at stake' Without large numbers of new judicial appointments 'serious doubts must be expressed about the capacity of district judges to cope with the additional burdens that will be placed upon them'.

Research (ignored by Woolf) shows that expanding the small claims jurisdiction will be 'just as likely to promote and reinforce dominance of the procedure by commercial interests as to increase access to justice for the ordinary citizen. Indeed, there is much evidence to suggest that expanding the limit may well be at the expense of the ordinary litigant'.

Research shows that 'fundamental court reform is extremely difficult to effect, and the bolder the proposals for change, the more likely they are to backfire or to have unanticipated consequences'.

There is much to cheer in the American experience with judicial case flow management which 'unquestionably has won wide support in the American judiciary'. 'Nevertheless there are gaps in the proof that case management does work'. 'There seems to be little doubt that energetic case management does do something--it causes lawyers to do more work under judicial scrutiny, with the judges pressing the lawyers to get the job done faster. Whether this actually reduces litigation cost is uncertain'.

American practices such as aggressive settlement promotion and increased sanctioning that have accompanied the development of case management might prove unpalatable in the UK.

The report fails to assess how incentives for lawyers and litigants will be affected by the proposals.

Woolf has an inadequate grasp of the time factor and delay in civil litigation. Thus, if timetables are fixed, court and judge supply will have to be demand led. There will be a need for more judges. The Treasury is notoriously unhappy with demand led areas of public expenditure--unless user charges cover the cost.

If, as Woolf proposed, the case statement has to be much fuller than now, one possible result would be to delay issuing the proceedings pending further investigation. The length of the case from the moment the client walks through the door might not change.

The problem of wanting appropriate experts for your case is solved in Woolf 'almost by ignoring it'. The way to work the system under Woolf would be to get your expert evidence before issuing the statement of claim. That would be the way to be able to commission the experts of one's choice and to prepare the evidence as one sees fit.

Having the lay client present during pre-trial case management conferences would exert unfair pressure to settle on ordinary people who would be at a huge disadvantage vis-a-vis the institutional opponent such as an insurance company. ('There should be some real concerns about the humanity of a system that may sweep in large numbers of people in poor health and circumstances to become the object of what they will undoubtedly perceive as professional intimidation.')

It is doubtful whether the Woolf system would deliver compensation more quickly in personal injury litigaiton "and may not make much difference to the overall timetable of other kinds of civil case". 'What it does seem likely to do is to encourage plaintiff lawyers to do more research and case prepara- tion before invoking the formal system and then to use the stricter timetable to force the pace on the defendants in a way that has not previously occurred. The results may well disturb the parties present understandings of equity and humanity.'

The only clear winners from the Woolf reforms would be the judges. 'If everything goes according to plan, judges will acquire a whole raft of new powers and authority to control parties rather than being at their beck and call.' This would be especially true for district judges. All judges would have a more predictable working week with fewer frustrations of unstable and ever-changing lists. More work would be done on paper or through communica- tion technology which would increase the judges' ability to manage their time. There would be a need for more judges. ('If you ask a judge to write a report of this kind, there is a fair chance that the recommendations will be judge-centred.')

Woolf criticises litigators for the way they operate the adversary system but does not seem to recognise that adversarialism is often just good lawyering. How can one judge what is excessive? Who is to judge?

'Will the new litigation 'tracks' and judicial managers adopt radicaly different rules designed primarily to promote settlement through bureaucratic case processing? Or might the new system simply represent a cut-down and speeded-up adversarial process which may exacerbate resource inequalities between the parties to the settlement process?'

It is puzzling that Lord Woolf did not give more attention to dispute resolution in tribunals, which could be a credible alternative to courts in some types of cases.

Lord Woolf's report leaves settlement and adjudication entangled. 'His central project of judicial case management consequently implicates the courts in the management of negotiations as well as the achievement of adjudication.' An alternative would be to provide a separate non-lawyer route to settlement. Nor need there be active involvement of the courts in sponsoring settlement."

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