The last entry on this comments page consisted of a summary of Lord Woolf's lecture to the Royal College of Physicians on May 13, 1997, in the course of which he embarked upon a frontal assault upon Michael Zander QC's criticism of Lord Woolf's proposed reform of the British civil procedure scheme. Lord Woolf specifically addressed in detail Professor Zander's lecture delivered to the Chancery Bar Association on April 28, 1997. Hereafter follows Professor Zander's rebuttal to Lord Woolf's remarks of 13th May.

"In my lecture to the Chancery Bar Association on April 28[entitled 'The Woolf Report: Forwards or Backwards for the new Lord Chancellor?'], I asked for some reply to my criticisms of the Woolf reforms: '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.'

I did not expect that Lord Woolf himself would step forward but he chose the unlikely occasion of a lecture at the Royal College of Physicians on Tuesday May 13 to make his reply. Of the 29 pages of the lecture, no less than 21 were devoted to a detailed response to my Chancery Bar Association lecture.

He did not mince his words. He described the lecture as 'misleading and inaccurate'. He suggested that it would be unfortunate indeed if the new Lord Chancellor were to follow my suggestion to call a halt to all the work that is in progress at the present time: 'To pay serious attention to what Professor Zander has said would be to give him credit he does not deserve. I regret having to say this of a friend but the fact is that his lecture was not a balanced consideration of this serious subject and ill considered.'

My lecture will be published in the July issue of the Civil Justice Quarterly. I understand that the arrangements for the publication of Lord Woolf's lecture are as yet uncertain.

In these circumstances, I thought it would therefore forward matters if I replied to his reply - which would at the same time have the advantage of making his views available to those most concerned with the issue - albeit from me rather than from him. I do so by taking up, in order, the main points raised by Lord Woolf.

I sent Lord Woolf an advance copy of this article and understand from him that, as a result, the published version of his lecture will contain some alterations, especially in regard to what he said about me. I mention these points here nevertheless because they were advanced in a public lecture, because they may express views held by others and because they raise matters of general importance.

1. Zander thinks that there is nothing very much wrong with the way the civil justice system is working.

This is a misunderstanding of my position. There is and always will be plenty wrong with the civil justice system. But I am not persuaded that the Woolf reforms will improve matters. On the contrary. I am therefore against the Woolf reforms regardless of how badly the system is working. If x = bad, it makes no difference in my view whether the system is x, 2x or 3x bad. My position is that the Woolf reforms will make things worse - period.

2. Zander has no relevant practical experience. ('If you heard his lecture you would no doubt have been impressed by his eloquence but you should not have been impressed by the content. It was not based on any relevant practical experience.')

This reflects a common enough attitude toward academics on the part of legal practitioners and judges. Lord Woolf would be horrified by the suggestion that he is insufficiently appreciative of the role of academics, but this remark reveals the view that, when the chips are down, academics cannot be expected to understand the affairs of practitioners as practitioners understand them. If there is a difference of opinion between them as to what happens at the coal face, the worker's view is to be preferred - not because of its merits, but by definition.

I take a different view. It seems to me that an experienced academic has as much to say of relevance to the practical workings of the legal system as any practitioner or judge. The vantage point, of course, is that of the academic. But that does not make it less relevant or useful. It is merely different. Other things being equal, I would rate the value of a contribution on such a subject from a judge, a practitioner or an academic as equal. They each have something to contribute from their respective perspective and experience. Each should be accorded the same attention.

The practitioner and the judge bring to the table their practical experience of the system in action. Understandably in such discussions they tend to dwell on the horror stories and anecdotes drawn from the cases they have been in. These are absolutely real and they show what they appear to show about those cases. They are not to be ignored. But they are not the whole story.

The academic, if he is any good, brings to the table a grasp of how the system is working as a system. That is what he is paid to understand. He will pay attention to the horror stories and the anecdotes but he will not allow himself to be dominated by them, as practitioners often are.

The idea that academics should be regarded as irrelevant to discussion of serious practical matters would be preposterous in the medical or scientific field. But the Heilbron-Hodge Committee set up jointly by the Bar Council and the Law Society, which paved the way for the Woolf Report and which has been cited repeatedly by Lord Woolf, had 44 practitioner members, including five who were co-opted. Not one of the 44 was an academic! In this particular case, disparagement of the academic role is perhaps especially unfortunate since there is virtually no one else putting the argument that I have been trying to press. Many practitioners and even some judges have told me privately that they share my fears about implementation of the Woolf reforms and that they are glad that someone is speaking up as I have. But, whether out of fear for their careers or political correctness or other reasons, they are conspicuous by their failure to make themselves heard.

The academic may find it easier to say what the practitioners and judges think but dare not say.

3. Zander is not even much of an academic expert on the subject. ('He is a distinguished academic but until he commenced his present crusade his experience as an academic, at least recently, was in relation to crime.')

It is embarrassing to be put in the position of defending one's credentials to make a useful contribution to an important debate. The fact is that I have been plying my trade as a student of the pathology of the legal system - civil as much as criminal - for some 35 years.

I have done so as a teacher of the basic English Legal System course for first year students and of Principles of Civil Litigation for LL.M. students. I have done so as a writer of books and innumerable articles and researcher who has conducted relevant empirical research. My book, Cases and Materials on the English Legal System, now in its seventh edition, was first published 24 years ago. If put to it, I would claim that my expertise on the workings of the civil justice system is as great as that of any other academic in the country.

4. Zander's views are not based on any research he has done. ('Furthermore he has not suggested that the views he holds are based on any research which he has conducted into the working of the civil courts at least in recent times.')

My views are based on study of the workings of the system over 35 years through all means available to an academic. That includes reading just about everything that has been written on the subject in modern times and attending countless meetings and conferences over decades to listen to and participate in debates and discussions by judges, practitioners and academics. How much of the relevant research was conducted by me seems irrelevant to the question whether I have any solid basis for my views.

5. Zander's view of delay is based on outdated evidence; Woolf is based on the latest figures.

Lord Woolf said that 'on the question of delay' I relied on two reports on personal injury litigation - the Report of the Winn Committee (1968) which was almost 30 years ago and of the Cantley Committee (1979) nearly 18 years ago. In fact I cited Winn and Cantley not on the extent of delay but on the very different matter of their diagnosis of the reasons for delay. In my view the reasons for delay are likely to be pretty much the same today as in 1968 or 1979.

The only serious empirical study of the reasons for delay, however, is that done by KPMG Peat Marwick for the Lord Chancellor's Department in 1994. ('Study on Causes of Delay in the High Court and County Courts', 1994.) The study is, I think, not mentioned in either Lord Woolf's Interim or Final Report.

The study was based on scrutiny of the court records in 150 High Court personal injury cases and 188 county court personal injury cases in nine out-of-London courts.

But, as the report said, 'the data obtainable from court records was often fairly sketchy, especially for High Court cases' (para 2.4). The researchers therefore also interviewed solicitors for both parties in 26 High Court cases and 40 county court cases from the sample.

Lord Woolf has not at any time, either in his report or since, cited any evidence for his view that the chief cause of delay is the way the adversary system is played by the lawyers. In his report he seemed to put the blame for this on the lawyers. In his lecture of May 13 he said that it was the fault of the system, not the lawyers.

But there is no reliable empirical evidence to support the proposition, which is what I meant when I said that the reforms were based not on research but on 'unsubstantiated opinion'.

The fact that the opinions are those of experienced people who work in the system collected during an elaborate consultation exercise does not alter the fact that they are merely opinions.

The KPMG report identified seven causes of delay: the nature of the case; delay caused by the parties; delay caused by their representatives; external factors such as the difficulty of getting experts' reports; the judiciary; court procedures; and court administration. How the lawyers play the adversary game was not one.

Of course, delay intentionally engendered by lawyers as part of the games that litigating lawyers play is part of the story of delay due to the lawyers. But the KPMG study did not identify such ordinary characteristics of the operation of the adversary system as a factor in its study of delay caused by lawyers.

KPMG considered the relative importance of the seven factors. It found that the two factors that gave rise to the most significant delay were first, delay caused by lawyers, mainly due to pressure of work and inexperience or inefficiency in handling the case by the parties' solicitors, and secondly, the time taken to obtain medical or other expert reports.

KPMG thought that delay due to solicitors' inefficiency was partly remediable by better office management systems. Maybe time table deadlines will help some firms to brace up - but it seems improbable that the imposition of sanctions for failure to meet timetabling requirements will do much to reduce the pressure of work or the inexperience of staff which so often cause firms to delay.

Be that as it may, pressure of work, inexperience and inefficiency of solicitors are not the same as playing the adversary system game which Lord Woolf identified as the cause of delay justifying radical action. I therefore stand by my assertion that there is no solid empirical evidence of any kind to back Lord Woolf's diagnosis of the problem, on which he erects his entire edifice.

6. Zander thinks that the faults of lawyers in the area of delays are minor and argues that the enterprise of trying to make them keep to time tables is hopeless.

I hold the view that the enterprise of setting detailed procedural time tables, such as is proposed for the fast track, is doomed to failure ('built on sand and doomed to go the way of all sand castles') because a huge proportion of firms, including efficient firms, will for all sorts of reasons - some good, some bad - fail to keep the prescribed time tables. If I am right, that will lead to enforcement procedures and sanctions on a vast scale, which in turn will lead to innumerable appeals. It will also lead to the imposition of sanctions that are disproportionate and therefore unjust and that will often work great injustice to clients for the failings of the lawyers.

I am therefore broadly not convinced about court-driven time tables enforced by sanctions - whether for a whole class of cases as on the fact track or tailor made as for the multi-track. The court simply does not know enough about what is happening in solicitors' offices for it to be regarded as a credible authority on detailed timetabling for the mass of cases.

I do see a strong case, however, for attempting to get a grip of the minority of cases which clearly appear to be dragging. That basically is what Cantley recommenced in 1979 and it seems a reasonable place to start.

In regard to the mass of cases, I would be happy to be proved wrong through pilot studies about the effectiveness of structured time tables enforced by sanctions. I am against their introduction across the board.

7. Zander ignores or discounts the evidence that costs are too high. That is not so. I accept that costs are high. But my fear is that implementation of Woolf will cause them to be higher still, especially through frontloading of costs in response to court management on the vast mass of cases that settle before setting down, let alone before the door of the court. Moreover, the recent three volume study of court management in the United States by the RAND Corporation shows that court management tends to increase costs even for cases that get as far as the door of the court. Lord Woolf has given no satisfactory answer to this crucial point.

8. Zander does not appreciate that court management would be applied selectively to cases that need it.

As I read the Woolf Report, it proposes some court management for fast track cases and a good deal more court management for multi-track cases. Since I take the view that most cases court management of any kind is unnecessary and that it will often be the cause of increased inefficiency, I am not in favour of what is proposed.

I accept that court management for some cases can bring efficiency gains. The trick is to discover how to put in place a system that will reliably identify those cases. I would start with big and complex cases and at the same time experiment with different systems for different categories of less complex cases. I would not go ahead with a grandiose and untested system for all cases.

9. Zander has misunderstood or misused the RAND Corporation's report. ('The selective way that Professor Zander cites from the report indicated that he has wholly failed to grasp the true nature of my recommendations or he has not fully absorbed the contents of the RAND report.')

To accuse an academic of 'selective quotation' is a rather serious allegation, suggesting an element of mischief or worse. I do not think that Lord Woolf either does or could sustain the allegation.

Few readers of this journal will have RAND's three-volume study or even the sorter summary volume and they will therefore have to take this matter on trust. I believe that my description, quotations from the analysis of the Report will stand up to any scrutiny.

In particular, I believe that the RAND study establishes convincingly that court management generates higher costs - which is the opposite of what Lord Woolf suggested in his report.

I accept that the RAND study shows that court management may reduce delays but argue that, if the reduction is minor, it is of little significance whilst, if it is major, there is a risk that injustice may be caused because the lawyers may not have the time to do the work that needs to be done on the case.

Lord Woolf suggests that the American experience is different and therefore basically irrelevant. I believe that, though different, it has many important lessons for us and that we ignore the negative findings of the RAND report at our peril.

10. Zander makes 'unjustified criticisms' of the fast track proposals: (Sanctions will be too draconian; lawyers are not capable of working to time tables; overly speedy procedure means potential injustice to litigants.)

I do have concerns whether the fast track will overall deliver more justice. If experiments show that, on balance, it is an improvement, I will be delighted.

11. Zander is too negative.

Lord Woolf has asked whether I am against his whole report - the Civil Justice Council, the new rules, the proposals on discovery and experts, the coming together of medics, lawyers and insurers to find new ways forward. Can it be right 'to rubbish the lot'. To respond in summary form: I am for the Civil Justice Council. I am skeptical whether the advantage of having new rules will outweigh the disadvantages. I am very concerned that the new rules requiring primary discovery of adverse documents will be restricted to those of which the party is 'aware', which I fear will lead to a new culture of unawareness. Also, how is a party to know what could be relevant to his opponent's case?

I am equally concerned about the proposals for court appointed experts which will, I believe, tend to increase cost in that the parties will often still have their own experts. I am for the coming together of people from the relevant different professions to find new ways forward, including the development of new protocols for litigation of different types of cases. I am also in favour of plaintiffs' offers as recommended by Woolf.

It is not my aim to 'rubbish the lot' but rather to suggest that the case of the implementation of the main parts of the Woolf package has not been made out.

I am aware that some 'Woolf style' changes of culture are beginning to manifest themselves - for instance, in a more robust attitude on the part of the judges toward delay. But it remains to be seen whether this proves to be more of a plus than a minus. Experience with automatic striking out under Ord 17, r 11 of the County Court rules is, to say the least, not very encouraging.

I accept that some, at least marginal, changes of culture can take place - even amongst lawyers and judges. But I tend to view that at best they will be slow and patchy and that often they will produce results that are opposite of an improvement.

Whether Lord Woolf is right that his reforms will on balance improve matters, or I am right that they will on balance make things worse, is a question that can only be put to the test by implementation. I am wholly in favor of trying anything in pilot studies. I am against whole scale implementation on the ground that the damage cause could be immense and perhaps irremediable.

If implementation of Lord Woolf's report does go ahead, and over time I am proved to be broadly wrong, I will be glad to admit it - and rejoice.

If, as I fear, I am proved to be basically right, I hope I would be able to resist the temptation of saying 'I told you so'".