The past three comment pages addressed the new Labour government's proposed changes in the British legal system, with particular emphasis upon "modernization" of rules of civil procedure. Hereafter follows the text of Professor Michael Zander's 28th April 1997 lecture, delivered to the Chancery Bar Association.

Footnotes are indicated by bracketed, underlined numbers. For easy access, the footnotes have been reproduced on a separate page, which can be reached by clicking here. To return to the lecture text, click the "back button". To again visit the footnote page, click the "forward button".

"This lecture, given four days before the General Election, is directed principally at the new Lord Chancellor. Its purpose is to explore the central recommendations of Lord Woolf's Report, Access to Justice.[1]

I have from the outset been extremely critical of the main thrust of the Woolf Report[2] - so far, it has to be said, to no effect. It is obviously now rather late in the day. The Lord Chancellor's Department has for a considerable period been actively engaged in preparing for implementation, currently scheduled for October 1998. A second draft of the new Rules is due to be published as part of the Woolf consultation process in July. A major programme of training in the basics of the Woolf reforms for all the 800 or so full-time trial judges, conducted under the auspices of the Judicial Studies Board, has already begun.[3] There is a general assumption that the new Lord Chancellor will simply adopt the implementation programme instituted with such enthusiasm by Lord Mackay.

Moreover, implementation of the Woolf project appears to have almost universal support including, so far as one can tell, that of the senior judiciary, the Bar and the Law Society[4] as well as both the lay and the legal press.

Nevertheless, my intention here is to present the case for second thoughts even at this 59th minute of the 11th hour. My thesis is that implementation of Woolf will disrupt valuable elements of our traditional system, that the hoped-for compensating benefits will not materialise and that implementation will actually make things worse rather than better. I take the view that the widespread belief in those hoped-for benefits is based mainly on wish fulfillment.

I do not think it will be easy to get many to listen. My experience of this debate over the past two or so years is that the feeling that 'something must be done' about what is understandably thought to be a serious problem is so strong that there seems to be remarkably little interest in awkward facts and analysis that suggest that this emperor is wearing no clothes.

The basic thesis of Lord Woolf's Report was set out at the beginning of the Interim Report:

'The key problems facing civil justice today are cost, delay and complexity.'(p.7,para.1)

There is no agreement as to what constitutes undue cost, undue delay or undue complexity, but I will assume that we are agreed that cost, delay and complexity of litigation are real and serious problems with which it is important to grapple and that solutions should, if possible, be found.

Lord Woolf said that

'[T]he three are interrelated and stem from the uncontrolled nature of the litigation process. In particular, there is no clear judicial responsibility for managing individual cases or for the overall administration of the civil courts.' (ibid.)

The solution suggested was judicial case management:

'I believe there is now no alternative to a fundamental shift in the responsibility for the management of civil litigation from litigants and their legal advisers to the courts.' (ibid, p.18, para.2)

Lord Woolf made it clear that he seeks a fundamental change in our legal culture:

'A change of this nature will involve not only a change in the way that cases are progressed within the system. It will require a radical change of culture for all concerned.' (ibid, para.4)

The Interim Report said, 'By tradition the conduct of civil litigation in England and Wales, as in other common law jurisdictions, is adversarial. . . [T]he main responsibility for the initiation and conduct of proceedings rests with the parties to each individual case'. (ibid, p.7, para.3)

But without effective judicial control, it went on,

'the adversarial process is likely to encourage an adversarial culture and to degenerate into an environment in which the litigation process is too often seen as a battlefield where no rules apply.' (ibid, para.4)

The consequence was that 'expense is often excessive, disproportionate and unpredictable; and delay is frequently unreasonable'. This arose because 'the conduct, pace and extent of litigation are left almost exclusively to the parties' and that there 'is no effective control of their worst excesses' (ibid, para.5).

Thus, for instance, in regard to delay, Lord Woolf opined that:

'In the majority of cases the reasons for delay arise from failure [by the lawyers] to progress the case efficiently, wasting time on peripheral issues or procedural skirmishing to wear down an opponent or to excuse failure to get on with the case'. (ibid,p.13, para.36)

The conclusion was that the excesses of the adversary system in the operation of the civil justice system were so great that only a transfer of control to the judges could put matters right. There was no alternative. (For some this may recall another context in which it was proclaimed by She-Who-Had-to-be-Obeyed that 'There is no alternative'.)

One might have expected that, of all people, practising lawyers would take exception to Lord Woolf's caustic view of the way that they operate. But neither the Bar nor the Law Society has raised a peep of protest about this calumny. Indeed Lord Woolf's view was essentially not different from that of the Independent Working Party set up in 1992 jointly by the General Council of the Bar and the Law Society. The Working Party, under the joint chairmanship of Miss Hilary Heilbron QC and Mr Henry Hodge, consisted of 20 barristers, including ten silks, and 19 solicitors. There were in addition a further five co-opted practitioner members. (Remarkably, not one of the 44 lawyers involved was an academic.) In its report published in June 1993 and entitled 'Civil Justice on Trial - the Case for Change', the Heilbron-Hodge Working Party said:

'it is time for many of the deeply-ingrained traditions to be swept away and for their replacement by pragmatic and modern attitudes and ideas. In essence what is needed is a change in culture.' (p.6, para.1.8)

Progress of actions lay with the parties and their lawyers rather than the courts. 'This', Heilbron-Hodge said, 'is often a recipe for unacceptable and otherwise avoidable delay as well as unnecessary cost.' The Report called for a variety of steps to enable the court to 'take a significant grip upon an action' (P.40, para.4.31).

The approach of blaming delay and costs on the way the lawyers operate the adversary system taken both by Lord Woolf and by Heilbron-Hodge contrasts strikingly with the approach of the Winn Committee in 1968 and the Cantley Committee in 1979. The Winn Committee, in a six-page section, thought that delay in personal injury litigation was a serious matter and identified a long catalogue of reasons for delay without even mentioning the uncontrolled nature of litigation identified by Lord Woolf as the reason for delay.[5] Mr Justice Cantley's Working Party[6], far from suggesting that the lawyers abused the system, took the view that undue delay in High Court personal injury litigation was unusual and that generally the lawyers conducted themselves appropriately.

If, as Lord Woolf suggests, undue delay in civil litigation is common and, the prime cause of delay in the system is the way the lawyers operate the adversary system, then attempts to tackle that problem by wholesale reform are at least understandable. If, however, as Cantley suggested, the way the lawyers operate the system is a very minor aspect of undue delay, wholesale reform can obviously do little to deal with the problem - which may, moreover, not be such a great problem anyway.

Having an accurate sense of the dimensions of the problem of undue delay and its causes is clearly essential to devise appropriate reforms to tackle the problem. Moreover such knowledge must be based on a picture of what happens in the majority of cases that do not reach the door of the court as well as in the small minority of cases that do.

Neither Lord Woolf nor Heilbron-Hodge conducted research on the matter. Nor is there any sign that they considered the evidence on delay (such as it was) generated by the Winn Committee, the Cantley Committee or the Civil Justice Review.[7] For what it is worth I incline to the view taken by the Cantley Committee. But the fact is that we have no basis for any statement about the proportion of cases in which there is undue delay or its reasons.

In the absence of any hard evidence it behooves those who make reform proposals to be very careful about their analysis of the problems and their recommendations. The more radical the proposals, the greater the need for care. To base radical reform proposals, as Lord Woolf did, on unsubstantiated opinions is a recipe for getting things radically wrong.

But let us now, for the sake of argument, assume that the criticisms of the way the lawyers operate the adversary system in Heilbron-Hodge and Woolf are broadly accurate and that this explains delay in a significant proportion of cases. What follows? If the majority of lawyers are indeed so seriously at fault for the way they conduct civil litigation, drastic steps obviously have to be taken to remedy the situation. And that indeed is precisely the conclusion reached by both Heilbron-Hodge and by Lord Woolf. Both recommended that judges should take charge, both recommended a regime of minutely detailed procedural steps and both recommended a severe regime of sanctions for failure to comply.

Thus take Lord Woolf's standard regime for the Fast Track (Final Report, p.35). The timetable begins 14 days after service by the court of the Notice of Allocation of the case to its appropriate track:

(1) Discovery (to be known in future as 'Disclosure',) must take place within 28 days.

(2) Exchange of witness statements must take place 21 days thereafter.

(3) Exchange of expert reports must take place within a further 21 days.

(4) At that time the court dispatches the listing questionnaire to both sides.

(5) The parties must return the listing questionnaire within 14 days of dispatch.

(6) Not less than 8 weeks before the trial the court informs the parties of the exact hearing date.

(7) The trial will take place not more than 30 weeks from the start.

Having set out this detailed scheme Lord Woolf continues:

'I regard adherence to the overall timetable, with strict observance of the set trial date, as an essential component of the fast track. For this reason, the directions order will be framed as a series of requirements which must be completed by specified dates and will include an automatic sanction for non-compliance, unless an extension order has been obtained prospectively. Parties will be in breach of the order unless they comply with the directions by the date specified.' (Final Report, P.35, para.15)

The philosophy that informs this paragraph is central to the Woolf approach. I believe it is fundamentally misconceived.[8]

It is misconceived, first, because Canute-like, it defies reality. Every lawyer knows that there is not the slightest prospect that these prescribed time-limits will be complied with. There are many studies that establish that lawyers are not good at keeping to prescribed detailed procedural time-limits. Thus a recent study conducted for the Efficiency Commission looked at compliance with regulations regarding time-limits in regard to committal proceedings.[9] The study found that, almost without exception, the time-limits set by the regulations were being exceeded, often by considerable margins.[10]

Even Lord Woolf knows it. On the very same page he says the following:

Experience with pre-trial reviews indicates that in a very high proportion of cases set down for trial, many of the steps which should have been completed prior to setting down have not been taken.' (ibid, para.13, emphasis supplied)

But the conclusion he draws is not that the enterprise is hopeless and therefore should not be attempted, but that there should be an even more detailed timescale for each successive step - backed, needless to say, by swinging sanctions. (The cry 'Sanctions work' is reminiscent to me of the cry 'prison works'.)

To rail at the failure of lawyers to comply with procedural timelimits makes as much sense as to rail at the advance of the tide. It is simply a fact of life. It is not one of which the profession can be proud. It represents a form of failure. But it is the kind of minor failure of which we are all guilty. To represent it as a matter deserving severe condemnation is another kind of failure - the failure to appreciate the day-to-day realities of running a busy solicitors' office with staff (often junior staff a fair proportion of whom are unadmitted) handling large numbers of cases, always under great pressure.

The second reason for believing Lord Woolf's approach to be fundamentally misconceived is that it inevitably leads to the application of wholly disproportionate sanctions. Recognising the truth that it is difficult to get lawyers to keep to procedural time-limits, Lord Woolf (like Heilbron-Hodge before him) urges the need for extraordinary sanctions. In the passage just cited, the appropriate sanction, it is said, should normally be 'automatic'.

We have some experience of automatic sanctions under order 17, rule 11(9) of the County Court Rules which as everyone knows provides for automatic striking out where time-limits have not been complied with. This rule, which was introduced in 1990, has proved a disaster. In August 1995 there were some 170 appeals on issues arising out of Order 17 pending in the Court of Appeal. Judge Greenslade, a member of the Woolf team, said that some 20,000 cases had been struck out under the rule and in fact the number is actually even higher still.[11] 20,000 or more cases in which the unfortunate plaintiff was left either to start all over again or to sue his lawyers for negligence. In what sense can this be said to be a step in the right direction?[12]

The philosophy is misconceived, thirdly, because it is based, I believe, on a fundamentally wrong-headed view of the nature of procedural rules. Sir Jack Jacob, truly a master of civil procedure, and wiser in these matters than any of us, said this of procedural rules and sanctions in his Note of Reservation to the Report of the Winn Committee:

'The admonition by Lord Justice Bowen that "courts do not exist for the sake of discipline" should be reflected in the principle that rules of court should not be framed on the basis of imposing penalties or producing automatic consequences for non-compliance with the rules or orders of the court. The function of rules of court is to provide guide-lines not trip wires and they fulfill their function most where they intrude least in the course of litigation.'[13]

The edifice based on a series of elaborately time-tabled procedural steps backed by sanctions for non-compliance which is central to Lord Woolf's scheme is founded on sand and is doomed to go the way of all sand-castles. Even if insistence on compliance leads to the imposition of inappropriately draconian penalties, the sanctions do not work. Non-compliance goes on anyway. Sooner or later that policy breaks down. Breaches of the rules are condoned, at which point the threat of the sanction evaporates.

English courts have traditionally preferred the much more relaxed and to me more sensible approach that minor breaches of procedural rules should not generally be penalised and that practitioners should generally be permitted to conduct litigation at the speed and in the way that seems best to them - subject to control by the court of serious abuse.

The result, as Lord Woolf complained, is that the 'existing rules were being flouted on a vast scale' (Final Report, p.72, para.1). But the question is not whether the rules are being flouted but whether anything can be done about it that is both proportionate to the problem and likely to be effective.

I take the view that the solutions proposed are likely to be unreasonable, counter-productive and ineffective.

There is really nothing that can be done about the problem other than the application of sanctions that are ridiculously out of proportion to the offence, a policy which, sooner or later, has to be abandoned because it is manifestly unjust.

This process could be seen in operation in decisions of the Court of Appeal last year - when the ink of the Woolf Report was hardly dry. In July 1996, in Beachley v Edgar[14] the Court of Appeal, with Lord Woolf, Master of the Rolls, presiding, held that the rules requiring service of witness statements on one's opponent should be insisted on even when there was no prejudice to the other side. The message was the rules are the rules and they must be observed regardless. If this is not insistence on compliance with procedural rules for its own sake, it is insistence on compliance pour encourager les autres.

But in November 1996, a differently constituted Court of Appeal in Letpak Ltd v Harris[15] did allow late evidence despite a failure to comply with the rules. And a month later in Mortgage Corporation Ltd v Sandoes[16] yet another Court of Appeal admitted evidence despite failure to comply with the rules about time for service of witness statements. Lord Justice Millett, giving judgment, said Head of Civil Justice, Lord Justice Scott, the court laid down certain guiding principles. These were that, although timelimit rules were rules to be observed, if they were broken, parties should cooperate to agree new ones. If agreement was reached they could usually expect that the court would give effect to the agreement at trial. This was a far-cry from the unflinching punitive approach in Beachley.

It is not likely that the traditional laissez faire approach will be allowed to continue. But, equally, Letpak and the Mortgage Corporation case show that the Court of Appeal is not really prepared to go all the way with insistence on the rules. The result will be an uneasy half-way house with the court sometimes using its discretion and sometimes, in seemingly identical circumstances, refusing to do so.[17] Whether that will prove to be an advance is a matter on which opinion will be divided. One likely consequence is a growing number of appeals on the subject[18] and, by the same token, growing confusion and uncertainty for masters and district judges at the coal face.[19]

The attempt to strictly enforce procedural time-limits sounds sensible and even laudable, but in practice it is unworkable and therefore ultimately creates more problems than it solves.

Let me now turn to Lord Woolf's chief substantive proposal, that the judges should take over from the lawyers responsibility for the progressing of cases - what is known as judicial case management (or sometimes, differential case management).[20] The idea that judicial case management is the answer to the twin evils of cost and delay in civil litigation has in recent years taken hold not just here, but in other common law countries including in particular Australia[21], Canada and above all the United States.[22]

In America, to varying degrees, it has been part of the system both in Federal and State courts for several decades.[23] The RAND Corporation has just published a major three-volume report on its impact and effect based on a study of 10,000 civil cases in federal courts over five years, 1990-95.[24] Since the Americans have by far the longest experience of judicial case management, the coincidence of the recent publication of this important RAND study is particularly fortunate for us at this juncture. Until now there have been no solid empirical data as to the effectiveness or otherwise of judicial case management. The RAND study provides such data - and on the whole they are discouraging.[25] Maybe attention to these results will help us avoid some of the mistakes that the Americans made.

The proposal that we should go over to judicial case management raises many different issues and problems. Let me mention a few:

1. English judges have not previously engaged in case management of thekind contemplated here. This therefore is a new skill to be learnt. But it is much more than a skill. It is a whole philosophy without which there willnot be the radical change of culture called for by Lord Woolf. Profound changes of culture are extremely difficult to achieve and changes of legal culture perhaps especially so. Reform attempts based on a call for a fundamental change of culture are apt to fail.[26] Notwithstanding lip-servicepaid to the Woolf reforms (sometimes one suspects out of political correctness), not all judges will want to learn. In fact many judges - whetherthey are High court judges, circuit judges or district judges - will be extremely resistant, not just in the short term, but into the indefinite future. The RANDstudy reports that even after forty years of experience with case management some American federal judges dislike it as an attack on judicial independenceand as unduly emphasising speed and efficiency at the possible expense of justice. That will certainly be at least as true here. The judge who is resistant to the concept is not likely to be an active case manager. The problem of inevitable resistance by a significant proportion of judges goes to the credibility of the entire project.

2. Quite apart from varying attitudes, judges will also vary in their aptitude for case management. Thus, for instance, some will use their new IT equipment effectively; others will not.

3. In the United States, each trial judge has a docket of cases allocated to him and he is personally responsible, and accountable, for progress in those cases. In this country the judge does not have a docket and even Lord Woolf does not propose it. Instead he suggests that cases should be assigned to teams of judges. It would be very surprising if this worked efficiently.

4. Case management means, by definition, a vast increase in judicial discretion. Over and over again in the Woolf Report one reads, 'the judge will decide , 'the judge will direct', 'the judge will have a discretion', 'the judge will have the power to...'

In some contexts, such as sentencing, judicial discretion is inevitable and even, on balance, and within limits, desirable. In others it is less desirable. Discretionary power in regard to the progressing of civil cases is, I would say, in the category of less desirable. Case management decisions will often be of great importance. I do not regard it as an improvement in the system if similar procedural issues are routinely decided by different judges in different ways.

Lord Woolf admits that inconsistency in the application of judicial discretion in case management needs to be addressed. The answer he suggests is training. But how can training touch this problem? The discretion is the discretion to judge. Discretion means discretion. In the sentencing field there is at least some curbing of inconsistency through guideline decisions and sentence appeals and nevertheless inconsistency continues on a massive scale. In the field of pre-trial civil procedure there will be few equivalent guideline decisions or procedural appeals. Lord Woolf himself says as much:

'[M]anagement decisions are pre-eminently matters of discretion with which an appeal court would seldom interfere.' (Final Report, p.154, para.5)

Inconsistent decisions will not simply increase. They will be everywhere. For me that is a considerable diminution in the quality of justice.

5. The proposal that the judge should be in charge of the progress of all cases is based on the belief that the judge knows better than the lawyers what is in the best interests of the case. In my view, this proposition is questionable. The lawyers know their clients; they live with the case. The judge comes into it briefly and inevitably with less knowledge. For every case where now the lawyers drag it out unnecessarily, there will I fear be many where the judge through misjudgment makes case management decisions that are inappropriate.

6. Case management involves many additional functions for the courts which will have to be performed - some by judges, some by court clerks. (The appendix has a list of over two dozen new functions proposed by Woolf.) I regard it as exceedingly improbable that the Lord Chancellor will get the money from the Treasury for the additional person power required. To the extent that that is so, lack of the personnel to make the new system work as intended will mean that it does not work as intended.

7. Whether or not the necessary number of new judges are appointed, many of the proposed new judicial functions are absolutely certain greatly to increase delays and costs in the system - the opposite of what Lord Woolf intends. Let me give just a couple of examples. Lord Woolf proposes that in all cases where there is a defence, both on the Fast Track and on the Multi-Track, the court should vet the pleadings to see whether they conform to the new principle that where the facts are disputed there should be clear statements of case by both claimant and defendant. The Final Report makes this optimistic suggestion:

'Scrutiny of statements of case by the court for case management purposes will stimulate those drafting statements of case to achieve a better standard.' (p.105, para.5)

Personally I do not intend to hold my breath whilst waiting to see whether this reform achieves the miracle of transforming the drafting of pleadings in solicitors' offices or barristers' chambers. It seems highly unlikely given that evasive drafting will always appear to be in the client's best interests. But my point here is a different one. If the court is to tackle the problem of evasive drafting at all, it will absorb an immense amount of time. There is also of course the further question whether, even if it had a chance of succeeding, that use of judicial time would be worth while. Is the evil of evasive drafting really so serious as to justify the effort that will be needed to eradicate it or is this not a somewhat disproportionate application of scarce and expensive judicial resources?

Or take Lord Woolf's proposal that at the end of a case the judge should allocate costs on the basis of whether the parties have comported themselves reasonably or unreasonably not only during the litigation but even in the pre-action stage. The amount of time that would be absorbed by such an enquiry would obviously be very great. Instead of, as now, the matter of costs taking a couple of minutes, the judge would have to embark on a protracted and no doubt hotly contested adjourned hearing that would lead to a ruling which would in many instances then be appealed, often successfully. It hardly bears thinking about. Yet it is proposed by Lord Woolf in a sentence or two as if it were a completely straightforward matter with no recognition that, whatever its merits, it will take up significant resources in terms of time and cost - not to mention aggravation. (A similar proposal was made by the Winn Committee in 1968 but it never took effect.[27])

The proposition that judicial case management will reduce costs has the ring of common-sense plausibility about it. But, commonsense is often wrong. It may be that in large and untypical cases like the Lloyds' litigation it is true. But in ordinary run-of-the mill cases it is not true. Judicial case management does not save money, it positively adds to the costs. The recent RAND study both establishes that as a fact and explains the reason. 'Early judicial case management [also] is associated with significantly increased costs to litigants, as measured by attorney work hours.' The reason? Case management generates more work for lawyers:

'Lawyer work may increase as a result of early management because lawyers need to respond to a court's management - for example, talking to the litigant and to the other lawyers in advance of a conference with the judge, and updating the file after a conference.'

Even shortening the time to trial, as Lord Woolf proposes with his Fast Track, does not necessarily reduce costs. RAND estimated that even when case management cuts time to trial it increased costs. It added, 'These results debunk the myth that reducing time to disposition necessarily reduces litigation costs.'

Experiments were conducted by RAND to see whether it made any difference if early case management were earlier or later. It made no difference. The Rand Report said:

'This finding suggests that the fact of management adds to the lawyer work hours, not the "earliness" of the management.'

Of course, the earlier the case management comes in the life of a case, the more cases are brought into the system and the more costs will be front-loaded onto cases that would have settled anyway.

In my view, the Woolf Report gives wholly insufficient attention to this crucial point. According to Woolf, case management should apply to all cases where a defence is entered - but almost all such cases will settle anyway and most do not need case management.

Lord Woolf has said that too many cases settle at the door of the court and early case management may cause some of them to settle earlier. That may or may not prove to be the case.[28] But even if it does, far more cases settle much earlier anyway and will incur extra and often useless extra cost by reason of the imposition of unneeded case management.

It is true that many cases that are set down for trial are disposed of after trial or by settlement at or near to the door of the court.[29] But the overwhelming majority of actions commenced do not reach the stage of being set down for trial.[30] Yet all cases which get as far as a defence being entered (and unfortunately, no one knows the number of these[31]), will be subject to the extra cost of Woolf-generated case management.

This point is obvious and I believe devastating for the credibility of the Woolf package of reforms. It is a mystery to me how anyone can believe that case management could do anything other than increase costs for the mass of cases that are settled before being set down. But now the RAND study has demonstrated that judicial case management tends to increase costs also for the cases that do get as far as the door of the court. The fact that it may reduce costs in a few untypical long cases is clearly no consolation. (A case management regime could be introduced for long complicated cases.) But the increase in cost for the many is not balanced by the decrease in cost for the few.

Lord Woolf's answer may be that at least in Fast Track cases costs will be reduced by being fixed. But that is on the assumption that the lawyers do less work than now. If, as the RAND study shows, judicial case management causes them actually to do more work than now, reduced fees are patently unfair. If the lawyers are not to be paid for their work, they will not take the cases.

Moreover, the whole notion of fixed costs in Fast Track cases is less impressive than at first appeared. The proposal is that the loser should pay the winner the fixed costs and that the same fixed costs should apply equally as between the lawyer and his own client unless there is a written agreement to the contrary. Lord Woolf has suggested that the fixed fee should be a basic 2,500. But Dr Adrian Zuckerman, consultant to the Woolf team, has pointed out[32] that by the time one has added disbursements (including experts fees) , the cost of interlocutory applications, an advocacy fee and VAT (all of which Woolf allows as additional to the fixed fee), the bottom line of 'fixed costs' will not be much lower than costs in most such cases now.

Nor is it likely that judicial case management will reduce the length and therefore the cost of the actual trial. A study of matched samples in 3,000 personal injury cases in New Jersey found that while pre-trial conferences improved preparation, they did not shorten trials. The researchers concluded that they therefore lowered rather than raised the efficiency of the system by absorbing a great deal of court time without any compensating savings.[33]

The final point on costs is that according to the RAND study only 5 per cent of variation in litigation costs is explained by case management. Lawyer work hours, it appears, are driven mainly by factors relating to the case rather than the extent of any case management. At best, therefore, the pickings to be won from judicial case management are relatively slender.

8. If judicial case management will tend to increase rather than reduce cost,will it at least reduce delay? The answer is that it may. The RAND study tells us that early case management can cut time to disposition. It also reports that the most effective device to achieve that result is the simple one of giving the parties a trial date from a very early stage and then adhering to that date, as Lord Woolf proposed. RAND also reports that having the lay client present at settlement conferences speeds disposition - another Woolf proposal. The Australian data also suggest that delay can be cut by case management - though the effect may only be temporary.

But then the question arises by how much could delay be cut and what would be lost in the process?

Lord Woolf proposes that in Fast Track cases a trial date should be set normally 20 to 30 weeks hence, though in personal injury cases it might have to be longer. Fast Track cases will all be taken in the county court. How does 20-30 weeks compare with present periods?

In 1995, the average period for cases in the county court from issue to start of trial was 78 weeks.[34] For Fast Track cases the 20-30 weeks date for the trial is to be measured from 14 days after the court has allocated the case to the Fast Track. Getting to that point will take, say, two to three months from the date of issue of the proceedings.[35]

On that basis, the trial date might typically be some 40-50 weeks from the date of issue. That would represent a definite reduction of time to disposition from the present average of 78 weeks. But it is only to be welcomed if the lawyers still have time to do what they need to do. The auguries here are not very good.

We know that in many cases the automatic striking out rule under Order 17, rule 11 creates serious difficulties for the lawyers. Under that rule the action is struck out if no request for a hearing has been made within 15 months of the close of pleadings. As has been seen, the rule has resulted in many thousands of cases being struck out. Presumably, if the time from allocation to trial is cut to 20-30 weeks, those problems will get considerably worse. My prediction is that, through no serious fault of the legal profession, these tight and largely rigid time-limits will prove unworkable even for efficient firms.

The length of time taken by cases varies greatly, sometimes because of the way the case is handled by the lawyers but more usually, I suspect, because of differences in the difficulties of cases.[36] It is very questionable whether the majority of county court cases that now take considerably longer than average could successfully be squeezed into the time-table of Lord Woolf's Fast Track. Yet the concept of the Fast Track is that of a Procrustean bed (20-30 weeks to date of trial) for all cases in the category.

A possible answer is that the Fast Track will only be used for the cases that are now handled within something like eight months and that most of those that take a good deal longer will be on the Multi-Track. But if the Fast Track is only to be used for cases that would be likely now to take up to say eight or so months, why bother? There would be little point in having the Fast Track, the main purpose of which is to get cases through from start to finish more quickly.

Yet another problem is allocating the case to its right track. The RAND study reports that American courts have great difficulty in deciding the appropriate track at an early stage and as a result they tend to allocate virtually all cases to the standard track which here would mean the Fast Track. Also, it is proposed that there should be a right of appeal from the district judge's allocation decision to the circuit judge and, with leave, to the Court of Appeal. Is this to be a new source of vast numbers of interlocutory appeals?

Leaving that problem aside, both the Fast Track and the MultiTrack case could probably be speeded up somewhat by the early fixing of a week for the trial. The RAND study shows that this does work. But if the time to disposition is cut by only a little, the improvement is not of great importance; whereas if it is cut by a great deal there is the obvious danger that the lawyers will not have the time to do what needs to be done.

9. This leads to what ought to be our main focus - justice for the litigant. An earlier study by RAND found that, contrary to what one might think, litigants are not primarily concerned about cost and delay. What they are primarily concerned about is a fair process.[37] One aspect of a sense of fair process is having one's day in court, feeling that one has been able to present one's story. Lord Woolf's Fast Track abbreviated procedure is consciously designed to inhibit the client's opportunities to tell his story. Thus, in particular, the evidence at trial is generally to be restricted to three hours for both sides together and experts will not be allowed to testify orally at all. This may make sense in terms of economy but for the litigants, perhaps the litigants on both sides, it may provoke a sense of frustration. Claims involving sums of 3,000 to 10,000 may seem like relatively small beer for practising lawyers and judges justifying somewhat summary procedures. But 3,000 to 10,000 is not small beer for most ordinary citizens and I am not sure that they will appreciate being fobbed off with what is bound to be thought of as a restricted, second-class service - neither cheap nor cheerful.

I am therefore concerned that Lord Woolf's Fast Track may turn out to be more of a minus than a plus. A rushed pre-trial stage is to culminate in a rushed trial. I am skeptical as to whether litigants will regard that as better or even adequate justice. The same issue will occur equally in Multi-Track cases when the court's case management decisions appear unreasonable to the litigants.

Let me summarise. I believe not only that implementation of the Woolf project is doomed to failure but that it will actually make things significantly worse. It will increase rather than decrease cost both for litigants and for the system - and we must remember that in the Brave New World inaugurated by Lord Mackay litigants must pay not only for the costs of their lawyers but also for the cost of the judges and the courts as well.

Insofar as it reduces delay, the reduction will either be relatively minor, or, if it is great, may be at the expense of justice. In addition, there will be the great upheaval for all concerned. There will be the huge increase in uncertainty - for instance, regarding the interpretation of the new rules which will take years and much litigation to settle in, by which time the rule book will have started to wax fat again. There will be the unwelcome enormous increase in uncontrolled inconsistent discretionary decisions. And there will be the transfer of control of the case from the lawyers who know about the case and their clients, to the courts that know neither.

What then do I propose?

It is perhaps too much to expect that the new Lord Chancellor, having read this lecture, will announce the termination of the entire Woolf implementation project. But I do propose, absolutely seriously, that he call for proper consideration of whether what I say does or does not broadly make sense.

I have been saying much the same since before Lord Woolf issued his Interim Report.[38] It seems to me that the arguments I have been pressing are very strong ones and that they deserve an answer. But they have not been answered - perhaps because they are unanswerable.

My proposal is that the new Lord Chancellor should say, 'I want to be told by someone, in detail, and addressing the facts and figures, why Zander is wrong.' And Zander should be given an opportunity to reply to such an assessment of his arguments. And let there then be a reply to Zander's reply and let this process go on until both sides have said what they have to say. Such exchanges of advice to the Lord Chancellor should be published.

And then let the Lord Chancellor decide which is the better argument. Such an exercise could, if necessary, be completed in a few weeks. It would be an unusual way to proceed but I cannot see a better way for the new Lord Chancellor to have the basis for an informed decision as to whether to go ahead with the Woolf reforms. I acknowledge that even if the new Lord Chancellor were personally persuaded it would not be easy for him to stop the Woolf bandwagon. But I suggest that it is not good enough to allow the matter to go by default for lack of the energy required to look at the issues again. If I am essentially right, it must follow that we have to go back to the drawing board.

If I had such an opportunity I would suggest that, rather than proceed with the kind of root and branch radical reform proposed by Lord Woolf we should proceed very slowly and very cautiously: This is a field in which history shows that progress is notoriously difficult. In the past hundred years there have been over sixty official reports on reform of civil process. Yet manifestly they did not achieve the desired result of curing the ills of the system.

My guess is that if we were able to fast forward another hundred years we would learn that there had been quite a few further attempts and that the problems of cost and delay and complexity of civil process still persisted. Probably there is no such thing as the Alchemist's Stone that will magic these problems away. The idea that there will come a day when citizens go about telling each other of the marvel of how cheap and swift and simple it is to engage in civil litigation is a fantasy. In this area there will always be plenty about which to grumble. That is not a reason for giving up. But it is a reason for proceeding cautiously.

To put the same point in a different way, if the solution to a problem is worse than the cure, one is foolish to embark upon it. The wisest course is to select only such remedies as are likely to prove effective. The RAND study said that in the US Federal courts the package of reforms embraced by the concept judicial case management had little effect on time disposition or litigation costs. The reason was that whereas some of the changes had a beneficial effect they were canceled by others that had an adverse effect.

A prudent approach might, for instance, lead us to start by implementing the proposal made in 1979 by the Cantley Committee that attention should be directed first and foremost at the small minority of cases that plainly appear to be dragging. If a case has not been set down for trial within x months of issue of the proceedings, a summons should be issued requesting explanation. The court could then give whatever directions seemed appropriate in the light of what it was told about the reasons for delay. That would be a reform targeted on the right cases, as opposed to Lord Woolf's scatter-gun approach which would apply the reforms mainly to cases that do not need them.[39]

I would also urge that, whatever reforms are introduced, they must be monitored by careful research. Wherever possible, proposed reforms should be tested by pilot studies. Proper research takes time. But to fail to undertake research to test whether the reforms achieve their intended aim or whether, on the contrary, as so often happens, they fail or even make things worse[40], is a public scandal.

What we are talking about is the well-being of the civil justice system, the role of the lawyers, the role of the judges, costs and delay, and, above all, justice for litigants. The matter is too serious and the stakes too high for us to proceed like generals in the First World War - just thoughtlessly to blunder ahead."

April 15, 1997

- The court will consider whether the pleadings conform to the new principles of clear and simple drafting - 'the court will ensure that the parties plainly state the factual ingredients of their case so that the true nature and scope of the dispute can be identified'. (NB Lord Woolf's Statement of Claim is to be renamed Details of Claim).

- If the issues cannot be readily identified from the pleadings, directions will be given to rectify this.

- The court will have an enlarged power to give summary judgment on the application of either a claimant or a defendant or of its own motion.

- On receipt of the defence, the court sends to the claimant a copy of the defendant's defence and the allocation questionnaire; and to the defendant, the allocation questionnaire.

- If the allocation questionnaire is not returned by one or both parties, the procedural judge will either allocate the case or arrange a hearing.

- If both parties indicate they want a stay to try ADR, the court by administrative action grants a stay of up to 3 months.

- After return of the allocation questionnaire, the district judge decides on venue. If the appropriate venue is elsewhere, the case and the papers are transferred to the new court.

- The district judge allocates the case to its track on the basis its monetary value, the non-monetary criteria and the views of the parties. Notice of Allocation is sent by the court to both parties. This sets out the timetable and specifies the actual dates by which the different stages must be completed.

- Right of appeal to circuit judge against allocation decision and, with leave, to the Court of Appeal.

- The court deals with any applications for extension of the timetable.

In multi-track cases, the procedural judge will do any or all of the following:

- issue written directions, with a timetable giving key dates for compliance (such as the Case Management Conference (CMC) or Pre-Trial Review (PTR)

- fix a CMC - fix a PTR

- specify a period within which the trial must take place

- In Multi-Track cases, the procedural judge must also decide whether the case should be heard by a High Court or a county court judge. If it is to be heard by a High Court judge, a decision will be needed as to the division or specialist list and whether it should be dealt with on circuit or in the RCJ.

- In Multi-Track cases, the members of the judicial team doing the case management will have to liaise.

- In Multi-Track cases, the court deals with any application for 'extra discovery' beyond the initial 'standard discovery'. In deciding whether to order extra discovery the court should have regard, inter alia, to the resources and circumstances of the parties, the likely costs and the likely benefits.

- The court may appoint an expert to report or to give evidence to the court.

- The court may appoint assessors.

- The court may order that an examination or tests should be carried out in relation to any matter in issue, and a report submitted to the court.

- The court, usually the district judge, will decide whether to hold a CMC and/or a PTR.

- In both Fast Track and Multi-Track cases the court sends out the listing questionnaire to both parties.

- If the listing questionnaire is not returned within 14 days, the court must hold a hearing. A listing hearing may also be held if the information on the listing questionnaire is inadequate.

- The court notifies the parties of the fixed date for trial.

- The court could order the transfer of a case from one track to another.

- In Multi-Track cases, the scope and scale of case management should be adjusted to the complexity of the case, to the means of the parties and the importance of the matter.

- Cost sanctions or wasted costs orders would be imposed for failure to comply with the timetable.

- In awarding costs at the end of the case the court would take into account the reasonableness or unreasonableness of the conduct of the parties at all stages including failure to comply with pre-action protocols, failure to attempt ADR, or acting in an oppressive manner. The court should also take into account the outcome of individual issues.

- The court should be able to deal with costs even when all other matters have been resolved without litigation.

- Leave of the court will be required to instruct an expert other than a medical expert in road traffic cases.

- Leave of the court will be required to alter the date of the CMC or the PTR or the trial date.

- The purpose of the CMC is to set the agenda, to narrow the issues, to decide on the appropriate future work and case management required, to set a trial date and a timetable, and to consider ADR and costs. An expected outcome of the CMC would be the production of an agreed preliminary statement of contested issues.

- The purpose of the PTR is to check that directions have been complied with, to finalise the statement of issues to be tried, to set the parameters for the trial, including length and budget, and to confirm the hearing date.

- All interlocutory appeals should require leave.

- Procedural judges should be given appropriate clerical and secretarial and IT support to enable them to perform their case management functions efficiently.

- There should be training and monitoring of judges in regard to case management.