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Civil Procedure Bill [H.L.]
3.30 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that this Bill be now read a second time.
When in 1994 I asked the noble and learned Lord, Lord Woolf, to inquire into the rules and procedures of the civil courts, my principle purpose was to take forward the recommendation of the civil justice review that there should be a single set of rules. Little did I realise quite how effectively he would capture the public imagination and the willingness and the desire on all sides for reform of our civil justice system. In just two years, he carried the debate to all parts of England and Wales. Rarely has the topic of civil justice and its relevance to the economic and social well-being of this country attracted such widespread interest.
The noble and learned Lord, Lord Woolf, was assisted throughout his inquiry by a small group of assessors. These were Senior Master Turner; District Judge Greenslade, now President of the Association of District Judges; Rupert Jackson, QC; John Bolton and Phillip Sycamore; Professor Ross Cranston, the academic consultant; and Dr. Richard Susskind, the consultant on information technology. They, and the supporting secretariat, contributed greatly to the production of what the noble and learned Lord calls, in the introduction to his final report,
- "a programme for change which could radically improve access to civil justice".
An even wider group were also drawn into the process of developing proposals in working groups. Contributions to the public debate came forward not only from the profession and the judiciary, but also from individual litigants, business and consumers and representative groups. Those of your Lordships who wish to see in greater detail the issues and problems and the proposed reforms made by the noble and learned Lord will find these set out in the interim report, which was published in June 1995, and the final report, which was published in July this year.
The connection between litigation involving disproportionately complex procedures and litigation which generates disproportionate costs is all too obvious. It is clearly wrong that people should be deterred from taking legal action due to the prospect of being financially ruined if they do so. This fear brings our system of civil justice into disrepute. By the same token, it is also disreputable to exploit the fear of legal costs so as to deter persons from defending frivolous and unmeritorious claims. Our procedures, both in the judicial oversight of cases and the sanctions available, must guard against oppressive exploitation of the system.
A thriving society needs an effective justice system. Citizens and businesses must be able to conduct their affairs within a legal framework which is both fair and certain. When legal rights and obligations are breached, the law needs to be clear not only as to the remedies available but also as to the mechanisms which will provide access to justice. Civil litigation must become more affordable and cases must move forward more swiftly once they have entered the court system.
In the field of criminal justice, the importance of ensuring that cases come on for trial in a timely manner is well-recognised. So, too, in cases involving children, where there is also a clear recognition of the need for expedition. However, in other areas of civil litigation there has been less appreciation of the need for timeliness in finally resolving disputes. The Government believe that cases should not be allowed to linger on just for the tactical advantage of the parties or for the convenience of the courts or the professional advisers.
The Government welcome the expansion of the role of judicial case management. Courts will take greater responsibility for determining how cases progress, the level at which they should be tried, the early definition of the issues, the encouragement to settle and the deterrence of time-wasting or costly manoeuvres. I am pleased by the support which the principle of case management has attracted from the judiciary and the profession.
I also welcome the emphasis given by the noble and learned Lord, Lord Woolf, to the benefits of alternative dispute resolution. I would regard it as self evident that before launching litigation the disputed issues and evidence should have been foreshadowed in communications between the parties. It is only with the knowledge of the information relevant to the particular situation that the parties can begin to address on a fair basis the scope for settlement of the dispute. I believe that it is right to give new emphasis to the proper role which the court itself can play in promoting settlement and the use of other avenues of resolving disputes. Even if litigation is necessarily adversarial, the courts should be alert to deter tactical antagonism. That is an abuse of the system.
Following receipt of the noble and learned Lord's final report to me in July, I took a little time to reflect on the recommendations and to consider how best to take matters forward. Last week I informed Parliament of my proposed strategy for implementation. Copies of my implementation strategy
have been placed in the Libraries of both Houses. The target which I have set for implementation of the key aspects of the reforms, most particularly the fast track proposals, is Autumn 1998.The strategy which I have announced does not represent my final word on how things will progress. The recommendations cover a wide field and there is a great deal of further work to be done to secure successful implementation. I am particularly keen to ensure that this further work goes forward in the spirit of partnership between my department, the court service, the judiciary at all levels and users of the courts, in particular the legal profession.
I am very grateful to the Vice-Chancellor, Sir Richard Scott, who has risen to the challenge of promoting the needs of the civil justice system so that it in turn remains responsive to the needs of litigants. I am also very grateful to the noble and learned Lord, Lord Woolf, for agreeing, despite his new responsibilities as Master of the Rolls, to continue supervising the drafting of the remainder of the draft new rules. Given his position at the head of the civil appellate system, he clearly has a continuing interest in the planned reforms.
The Bill which I commend to your Lordships today is just a first step, though an important one, paving the way for the implementation of the procedural reforms. I consulted on my proposals for this measure earlier this year and was pleased by the degree of support which they attracted. The Bill's provisions are primarily aimed at providing the power and strengthening the structure on which reform of the rules and practices of the courts will depend.
I now turn to the particular provisions contained in the Bill. If we are to succeed in simplifying procedures, we need to have a unified set of rules of court applying in the Supreme Court and county courts alike. I should perhaps emphasise to your Lordships that the Bill applies only to England and Wales. And the rule-making powers to which it relates are those which apply to civil, non-family, litigation.
Clause 1 provides the power to provide for a unified set of rules of court applying in the Supreme Court and county courts alike. A draft of the general parts of the new rules of court was published alongside the noble and learned Lord's final report and has been placed in the Libraries. Consultation on the general shape of those rules is under way. Consultation on the detail of particular elements will follow.
Clause 1 is supplemented by Schedule 1 which preserves and in some respects enlarges the broad scope of the existing rule-making powers. Of the matters contained in that schedule, I might mention in particular paragraph 4. The proposal that the rule-making powers should extend to the power to make civil procedure rules which impact on the rules of evidence attracted a large measure of support on consultation. I believe that the rules of evidence should facilitate and not hamper the early identification of the issues in the case and the evidence relevant to them. Recent developments in the field of civil justice have promoted relaxation of the strict rules of evidence in order to ensure that parties put their cards on the table at an early stage. This can be
seen, for example, both in the provisions regarding the requirements for admissibility of witness statements, contained in Section 5 of the Courts and Legal Services Act 1990 and the further reform of the hearsay rule in the Civil Evidence Act 1995.Relaxation of the strict rules and formalities of proof would be likely to be of assistance, for example, in simplifying procedures and enabling more pro-active case management in courts dealing with pre-trial applications and summary judgment.
Clause 2 makes provision for the composition of the rule committee. I regard it as important to retain clear lines of responsibility regarding the making of rules. The responsibility for making rules of court will lie with a rule committee, and responsibility for approving the rules will remain to the Lord Chancellor. The composition of the committee needs to allow for participation by the judiciary, the legal profession and others, but it must be sufficiently small and workmanlike to deal expeditiously and authoritatively with rule changes. For the first time, a rule committee will contain lay members. I believe this to be a significant development in making the process more responsive to the needs of litigants themselves, not just those of the lawyers. Subsection (5) of this clause places an onus on the committee to make rules which are simple and simply expressed.
Clause 3 provides for the negative resolution procedure to apply to the civil procedure rules. I believe it is right that rules of court should be subject to parliamentary scrutiny. This is currently the position governing the rules of the Supreme Court. County court rules have not hitherto been subject to scrutiny.
Clause 4 deals with the need for power to make consequential amendments. This partly reflects the current rule-making provisions contained in the Supreme Court Act and the County Courts Act 1984. Your Lordships will understand that the powers conferred by this Bill will not be exercised until some time after it is enacted and it is important that there should be power to make alignments in other enactments reflecting the terms in which the rule committee's rules of procedure are made.
Clause 5 clarifies the scope of county court practice directions. Practice directions are already used to a certain extent, both in the High Court and local county courts for procedural purposes, including case management. The use of practice directions to promote effective and flexible case management will become all the more important in future. So too will the need for consistency of practice which can be properly supported by information technology. This clause will also put on a statutory basis the Lord Chancellor's powers to make county court practice directions. And in future it will be the case that county court practice directions will require my approval, or the approval of a person whom I authorise--here I have in mind, the Vice-Chancellor. When I consulted on this matter, the depth of feeling among practitioners in particular as to the need for consistency of practice between county courts was very marked.
Clause 6 deals with a point which while not central to the report of the noble and learned Lord, Lord Woolf, would fall to be covered in the new code of rules. The law and practice relating to Anton Piller orders (which are court orders aimed at preserving evidence needed for civil proceedings) was considered by a committee appointed by the Judges' Council and consulted on in 1992. At that time I supported the view that this was a matter which it would be beneficial to put on a statutory footing. The Government believe, for reasons of principle, that powers which, in effect, amount to a right to require entry to premises should have the overt approval of Parliament, and should not solely rest on the footing of a court ordered requirement of consent. This Bill provides the first opportunity since then to address the point.
The noble and learned Lord, Lord Woolf, has advocated the need for parties to adopt a sensible and co-operative approach from the earliest stages at which a potential claim begins to materialise. The primary tool for fostering this approach will be the development of pre-action protocols which identify the information which ought to be exchanged to put the parties in a position to consider settlement on a fair and well informed basis. The Government would wish to support that initiative. Clause 7, therefore, takes power to widen the statutory powers regarding the disclosure of documents before proceedings commence. We shall have to wait and see how the pre-action protocols progress before activating this power, but it is clearly important to encourage this development.
This Bill fits very well with current developments in the conduct of civil litigation, of legal aid and legal services which the Government have been pursuing and supporting. I shall continue with the programme of work outlined in my implementation strategy to secure successful implementation of the proposed reforms of the civil justice system. This Bill is a vitally important step in the process of reform which has been widely welcomed and is of vital importance to all our citizens.
I am particularly glad that the noble Lord, Lord Thomas of Gresford, has decided to make his maiden speech in this debate. We all look forward to learning from him in the light of his great experience of matters relevant to the subject matter of this debate. I commend the Bill to the House.
Moved, That the Bill be now read a second time.--(The Lord Chancellor.)
3.43 p.m.
Lord Irvine of Lairg: My Lords, from these Benches I too say with what keen anticipation we await the maiden speech of the noble Lord, Lord Thomas of Gresford, and not merely because he is a distinguished Queen's Counsel who hails from the Principality.
I have said before, and I say again, that the reports of the noble and learned Lord, Lord Woolf--both the interim and final report--are a creative attempt to address the twin evils of civil litigation; namely, excessive cost and delay. His judgment is that those twin evils arise basically from a single cause but one which has many manifestations; that our adversarial system has
led to cases being run by the lawyers, not by the courts, and implicitly to the disadvantage of the litigants but not to the disadvantage of the lawyers.The noble and learned Lord's proposed solution is:
- "A fundamental transfer in responsibility for the management of civil litigation from litigants and their legal advisers to the judges".
What the noble and learned Lord proposes, if not a revolution in how civil litigation has been traditionally conducted, is a transformation in the culture of civil litigation. His objective is one which I share and my party shares--a cheaper, faster, simpler civil justice system in an environment which promotes co-operation and early resolution of disputes, preferably outside the courts. Litigation should be the port of last resort.
Any layman studying this Bill to which we are invited to give a Second Reading today would be forgiven for thinking that it is anodyne in the extreme; that it is concerned merely with lawyers' law; that to redraft two cumbersome sets of rules into a single simplified set must be no more than ordinary common sense. However, that conceals the transformation in the culture of civil litigation which the proposed rule changes are intended to effect.
I want to make it plain that, subject to one or two qualifications, with which I believe the noble and learned Lord himself would agree, I support that cultural change. I think it vital that the existing good and co-operative relationship between Bench and Bar does not become a casualty of the implementation of the reports. If those relationships were to be damaged, I believe that that would be the opposite of what the noble and learned Lord intends.
Judicial case management is already substantially in place in many courts--the commercial court, the High Court and the Chancery Division. Generally it is working well but it is capable of going adrift. Perhaps I may give two hypothetical examples, neither entirely divorced from reality.
On day one of the trial the judge has counsel and solicitors before him. They discuss the forward progress of the trial on the basis of the needs of the particular case. The judge goes off for two days to read the documents which the lawyers agree are the critical documents. The judge and counsel agree on a timetable for the cross-examination of witnesses, specifying the anticipated length of each cross-examination. The trial resumes two days later. The timetable is not just adhered to but is improved upon. The trial is concluded earlier than anticipated. That is a triumph of judicial case management--a co-operative endeavour between the judge and the lawyers.
Now let us take this hypothetical example. On day one the judge says that he will allow counsel on each side no more than half a day each to open the case. Counsel protest. They both say that there are difficult technical issues in which the judge must be sufficiently educated by a longer oral opening and explanation so that thereafter the trial can proceed expeditiously. The judge overrules their protests. The trial proceeds after the abbreviated openings. The judge gradually comes to an appreciation that he does not understand the issues and permits very long cross-examination of experts, the object of which is
to educate the judge through cross-examination both in the issues and in the documents. The trial is a shambles and ludicrously long.When power is transferred, it is important not to inhale too deeply. The moral is that judicial case management must be a co-operative endeavour between the judge and the lawyers and, when at all possible, should proceed on the basis of agreement after full discussion of the needs of every individual case; and every case is an individual case.
I should like to see the new rules reflect an obligation on the court when setting a timetable to discuss with the parties' representatives the needs of the particular case in relation to openings, the duration of cross-examinations and final speeches and to have regard to their representations.
I am an enemy of the extensive, uncontrolled orality which used to be the hallmark of civil litigation. I am also an enemy of undisciplined and irrelevant cross-examination. I am a friend of concision. But the judges must carry the profession with them in timetabling trials. These observations go particularly to draft Rules 1.3, 39.5 and 39.6 of the noble and learned Lord, Lord Woolf. I shall not go into the detail of them now, but I think that draft Rule 39.6 is probably too rigid.
I turn now to the resource implications for the implementation of the reports of the noble and learned Lord, Lord Woolf. Effective case management by the judges will require resources to provide training, technology, back-up and perhaps greater judge power. Lord Justice Henry, the Chairman of the Judicial Studies Board, was only being realistic when he said recently that training in case management would,
- "need a substantial increase in the Board's Annual Budget",
which is now £3.2 million. Rightly he said it would "not be a cheap fix". But, leaving further training aside, the noble and learned Lord, Lord Woolf, himself recognises that case management would,
- "mean making realistic provision for reading time for judges ... more clerical assistance ... [and perhaps] the use of Law Clerks in heavy cases".
And there are other resource implications: the impact on legal advice and assistance. The noble and learned Lord says that one feature of his "new landscape" will be that,
- "litigants who are not legally represented will be able to get more help from advice centres and from the courts".
- "court staff will provide information and help to litigants on how to progress their case".
The noble and learned Lord acknowledges that his reforms would be more efficient if,
- "legal aid funding is available for pre-litigation resolution and alternative dispute resolution".
So these are serious resource implications which cannot be wished away.
The noble and learned Lord has raised great expectations of what the judges can deliver. His ground thesis is a major shift in the balance of power from the lawyers to the judges as the managers of civil litigation. But the judges cannot deliver without the resources,
realistically assessed. To impose great extra burdens on the judges throughout the whole system, without giving them the means to deliver, would oblige them to win a war without the weaponry. It will end not only in failure but also in damaging mutual recrimination between the judiciary and government.That said, I want the reports of the noble and learned Lord to be implemented with the consent of the professions and with public approval. I think that there may well be major benefits to the Legal Aid Fund from the implementation of the reports. Limited costs, without taxation, of fast track cases would mean that the board would know from the beginning what these cases would cost. Similarly with the multi-track cases, since estimated costs are to be published pre-trial, agreed by the parties and approved by the judge.
The noble and learned Lord's recommendations for multi-party actions are potentially highly beneficial to the Legal Aid Fund. Most multi-party actions are funded by legal aid. Greater judicial control over these highly complex and expensive cases is welcome. The proposal that privately paying litigants may join group actions could bring great benefits to them and to the fund.
Equally important are the recommendations for medical negligence cases. These are almost wholly funded out of the public purse, with the National Health Service on the one side and, on the other, 90 per cent. of the plaintiffs funded by legal aid.
In my keynote address to the Annual Bar Conference on 28th September of this year I said that an incoming government would immediately undertake a wide-ranging review both of the reform of the civil justice system and of civil legal aid. That review would include the noble and learned Lord's reports. That remains the position of the Opposition. A rigorous cost-benefit analysis there must be.
I emphasise that major improvements in the civil justice system must not be made at the expense of the rest of the system, particularly the criminal justice system. I have studied the strategy document which has been placed in the Library of the House by the noble and learned Lord on the Woolsack. I address in particular the paragraphs dealing with resources--that is, paragraph 28 and those following it. There is a realistic acknowledgement that,
- "there will be transitional costs in implementing these reforms".
That must particularly be so in relation to the budget of the Judicial Studies Board and the cost of information technology. But I ask: are they correctly described as "transitional"? Surely they are ongoing. I also ask: in what sense are they "transitional"?
The strategy document says that,
- "the resources needed will be made available from within my Budget",
that is, the budget for the Lord Chancellor's Department. I confess that I am unsure as to the precise meaning of the sentence in paragraph 29 of the document which reads:
- "I shall consider in consultation with the Court Service what redistribution of resources and other adjustments would assist this transitional stage".
In life, and in the law, there is no such thing as a free lunch. I read paragraphs 28 and 29 of the document as code language for unspecified economies elsewhere. I invite the noble and learned Lord on the Woolsack when replying to say where these economies are to be made. I do not read those paragraphs as pledging new moneys on top of existing budgets. I will assume that that is so, unless the noble and learned Lord on the Woolsack corrects me when he comes to reply.
I understand it to be the wish of the noble and learned Lord on the Woolsack that the Committee stage take place, not in the Chamber, but in the Moses Room. That would mean that amendments would be discussed but not taken to a Division in Committee. If any amendments had to be taken to a Division, that would happen on Report in the Chamber. I am ready to accept that procedure, but I hope that the noble and learned Lord will have an open mind about amendments and be ready to accept them if they will result in a better system. That would reflect the co-operative basis, to which the noble and learned Lord referred, on which these reforms should go forward.
No one can complain of any want of consultation in the preparation by the noble and learned Lord, Lord Woolf, of both his reports. He included in his consultations all the key groups involved in civil litigation. His draft rules are an excellent first stab. They are themselves the subject of consultation, as we have learnt; but in my view that does not excuse the new rule committee itself from an obligation to consult at a formative stage in its deliberations. The existence of a rule committee does not remove the need for consultations with all the professional bodies and with the consumer organisations both about the substance and the policy of the proposed rule changes.
There are a number of other issues which we will have to address in Committee: first, whether the noble and learned Lord on the Woolsack is right to say no to a civil justice council, as contemplated in the reports of the noble and learned Lord, Lord Woolf; secondly, whether the new office of Head of Civil Justice should be expressly sanctioned by statute, with the authority of the office enhanced as a result. Thirdly, whether the procedures and composition of the new rule committee should be strengthened by expressly legislating for the inclusion of consumer representatives as such, as distinct from two persons,
- "with knowledge of the working of the courts";
by increasing the number of litigation representatives on the committee from two to four in recognition of the increasing specialisation within distinct areas of legal practice; by imposing a statutory obligation on the committee actually to meet as a committee; by providing that four members of the committee are insufficient for signing new rules and that two-thirds of the membership, or eight members, are required; and by requiring the rule committee to consult interested persons and groups prior to settling the new rules, with a similar procedure for consultation on proposed and draft practice directions.
Also, and perhaps most importantly, I venture to doubt whether Parliament is sufficiently involved in considering the implementation of the reports of the noble and learned Lord. They represent--as he recognises--a transformation in the culture of civil litigation. In one sense this is an anodyne Bill, proposing only that a new united rule committee make new rules of court for all civil, non-family disputes. I do not think that the provision of the Bill that new rules should be made by statutory instrument, approved by Parliament by the negative resolution procedure, necessarily provides sufficient parliamentary scrutiny. It must be for consideration that approval to the new rules should be by way of the affirmative resolution procedure, so that both Houses of Parliament have a proper opportunity to debate the historic reports of the noble and learned Lord and the transformation of civil litigation which their implementation through new rules will effect.
Finally, we welcome Clause 6, which puts the Anton Piller jurisdiction on a statutory basis. I give notice that we are minded to put down amendments to this clause with the following objectives. First, we wish to ensure that all facets of the jurisdiction are covered; for example, the right of a party to have delivered up to him his own property: mere preservation orders are not sufficient. Secondly, we wish to make it clear that defendants as well as plaintiffs are entitled to the remedy; and, thirdly, to ensure that compliance with the order is required of employees of those subject to it. Fourthly, we wish to clarify the ambit of the steps that may be taken by those executing the order, in particular so that the party subject to the order can be required to operate his computer system so as to reveal any material stored on his database. Fifthly, we wish to deal with what we perceive to be a problem arising under Clause 6(5) in relation to the privilege against self-incrimination. Sixthly, we wish to make it clear that other forms of injunction may be included in an Anton Piller order. These are matters of detail to which we shall return in Committee.
4.2 p.m.
Lord Meston: My Lords, it is almost impossible to imagine the intensive hard work which must have been required for the production of the interim and final reports by the noble and learned Lord, Lord Woolf. Other reports in the past have stated the problems of civil justice and the civil justice system, but nowhere else have those problems been more clearly stated or analysed than in the two reports of the noble and learned Lord. Nowhere else has a comprehensive range of solutions been devised in the way proposed by the rules which are to be enabled by this Bill with its particularly wide Long Title. Above all, both his reports started from, and never lost sight of, a series of vital first principles. This leads me to suggest that if ever there was a Bill which should contain a purpose clause, this is it.
The reports have addressed the fundamental problem of delay in litigation, and its causes. Article 6 of the European Convention on Human Rights entitles
everyone to the determination of his or her civil rights and obligations within a reasonable time by a tribunal established by law. As is stated on page 12 of the interim report, tolerance of delay allows litigators to carry excessive caseloads in which the minimum possible action occurs over the maximum possible timescale. Over the past 20 years delay has been far less tolerated, not just by the courts but also by the professional disciplinary bodies. This has also been formally recognised in the county courts by the system of automatic directions and in the High Court with case management directions which have turned the procedural screw much harder for the average practitioner. There are times when for the barrister on the cab rank and, no doubt also, for the solicitor with office targets to meet, life becomes a series of unrelenting deadlines. Yet despite these valuable initiatives, litigation still tends to involve preparation by way of last minute sprints to get a case ready for trial.The two reports consider the structural and cultural causes of delay. One of the problems identified is the extent of the requirement in English law to give and seek disclosure of documents. As the interim report suggests, some of this process has a tactical purpose and is part of the adversarial culture in which winning battles and winning skirmishes becomes almost as important as resolving the real dispute between the parties. But it is also part of the defensive culture which requires us to protect our backs from professional negligence claims for failure to pursue particular lines of inquiry. It is not always easy to decide whether a particular line of inquiry will be cost effective or whether it will reveal an undisclosed chink in the other side's case. For most practitioners it is easier to ask for documents which may be relevant than to try to justify to oneself and to explain to the client why not to ask for them. The possibility that there may be some other documents to be extracted from the other party prevents the careful lawyer from advising a compromise settlement until that particular evidential avenue has been explored.
On the other side the lawyer may, or may not, advise that it is better to disclose a document than to create an impression that there is something to hide. The theoretical object is to get everyone's cards on the table, face up. The practical result is far too many cards. These are all then photocopied and packed into numerous files, which then have to be organised and read, but often only a few of them are referred to at trial. Even then we all have stories of cases in which the only document which really mattered did not appear until the last minute. It is not easy, even for the experienced practitioner, to know where to draw the line in disclosure of documents under the existing rules. It should prove a considerable benefit to have the lines formally redrawn, as is proposed in the reports and draft rules, coupled with procedures and protocols for early disclosure.
The proposals for more efficient and less partisan use of expert evidence are also to be welcomed. All too often in the past one senses that solicitors have consulted and then discarded several expert witnesses
until someone is found to say what the client's case requires. This tends to result in the same old war-horses lining up to disagree with one another in court about anything from the time of day to the colour of grass. Greater insistence on jointly instructed experts and the use of court appointed experts, certainly in more straightforward cases, is clearly necessary and will facilitate settlement and will undoubtedly be cost-efficient.However, the status of experts appointed by the court or by professional bodies at the request of the court, may need clarification, particularly if they are to develop into something like a court welfare officer in family cases. If the primary role and duties of such experts are to be as advisers to the court, there is a case, currently sub judice, which prompts me to ask--without wanting an answer now--whether such experts should normally have some measure of immunity from suit as a form of witness immunity or that which is given to so-called quasi arbitrators.
The reports also propose ways of facilitating settlement of cases. Already the great majority of cases settle before trial. Quite often they settle late because insurers are unwilling to pay out a realistic amount any earlier. The great majority of litigation lawyers spend much of their time trying to achieve settlement, warning clients of the costs, hazards and delay involved in fighting on. But again we are then vulnerable to complaints from individual clients that too much pressure was applied to settle. It is quite often easier to fight on and to let a judge decide the issue than to settle. Some clients are said to need their day in court, although I doubt that the courts are really there to provide such a form of therapy. In my experience the client who needs a day in court is often the client who stamps off afterwards muttering unrepeatable things about British justice.
Alternative dispute resolution is still not widely available. Out of court mediation requires skill and training if it is to command respect and to protect the weaker party. I therefore suggest that there should be more development of in-court mediation, judge-driven, just as litigation itself is to be more judge-driven under these reforms. The recently initiated pilot scheme for matrimonial ancillary relief cases has already adapted many features of the system which other civil cases will have when the Bill becomes operational. The pilot scheme has a requirement for repeated production of costs statements so, in the words of Lord Justice Thorpe, the litigants see what is being spent as clearly as if they were travelling in a London taxi. It also requires a dispute resolution appointment to take place after an initial structured exchange of necessary information before a judge who thereafter has no involvement in the case if it does not settle. An important feature is that every offer and every proposal of any sort and the responses to them, whether or not privileged, can and will normally be put before the court at that appointment. There must be cases outside the area of family law which would benefit from such treatment even if it involves a
degree of gentle headbanging and arm twisting. Twisting the arm of some litigants in the direction of their pockets at that stage may well be beneficial.The proposals for easier commencement of proceedings and for simplified combined rules of procedure can only assist litigants and lawyers. At present, transfer of cases from court to court is not simple and the dichotomy of rules involves paper-chasing and cross-referencing. I have recently represented a couple against whom proceedings were started in the wrong court by someone who probably ought to have known better. The result has been expensive procedural gymnastics for two years which have caused great strain to the couple concerned and deprived everyone of finality and certainty.
The regularising of local practice directions is also welcome. All too often one can go to county courts to be told rather complacently that they have their own way of doing things there, and that the authority for their way of doing things is a rather scruffy piece of paper half hidden on a noticeboard. One instance I recall was of a local direction which was almost certainly ultra vires. The noble and learned Lord the Lord Chancellor did not exaggerate the depth of feeling of practitioners about that feature of the system at present.
At Committee stage I hope that we shall have the opportunity to consider, among other things, the working, the actual meeting, and the composition of the rule committee which includes those intriguing characters in Clause 2 of the Bill,
- "two persons with knowledge of ... the courts."
We can all think of a considerable number of entirely unsuitable candidates.
I would also support the proposition of the noble Lord, Lord Irvine of Lairg, that the first set of rules to be made should be subject to the affirmative resolution procedure. It also seems necessary to look with a little more detail at the Anton Piller order which, quite properly, is now to have a statutory basis. As has been stated, it is a form of order which pushes the powers of the law to their extreme.
It is now 150 years since the County Courts Act 1846 was passed to give a cheap, simple and accessible forum for debt recovery. This Bill should provide another such great landmark if its provisions are properly resourced, piloted and implemented. The worst that could happen to it is that it becomes a victim of its own success, rather like the M.25--the tracks do not prove to be sufficient and there is only limited space for expansion. However, the Bill is welcome and on these Benches we are content with the procedure proposed for the Committee stage.
4.14 p.m.
Lord Bingham of Cornhill: My Lords, I join with those who have already spoken in welcoming the Bill. I join also with them in looking forward to the speech to be given by the noble Lord, Lord Thomas of Gresford. I have perhaps had the pleasure of listening to him more often than some of your Lordships in recent months and I look forward to listening to him
again. I have no doubt that his knowledge and experience will greatly enrich the deliberations of this House in the months and years ahead.I welcome the Bill as a new and hopeful step in the battle to counter the endemic problems of cost, delay and excessive complexity which dog the conduct of civil litigation not only in this country, but not least in this country. As the noble Lord, Lord Meston, has just observed, we have celebrated the 150th anniversary of the county court. The county court was created to counter that intractable problem. It was bitterly opposed by the legal establishment of the day but has proved to be a wise and benign measure which alleviated the problem even if it did not cure it for all time.
The proposals of the noble and learned Lord, Lord Woolf, have this enormous advantage: that far from being opposed by the legal establishment of the day, they have won its strong support. By his willingness to listen, his wide consultation and his skill in persuasion, his proposals command a high measure of support. Much of course remains to be done in refining the detail, working out the cost, and ensuring, as various noble Lords have already emphasised, that sufficient resources are devoted to financing this transition, and that judges and court staff are educated and trained to perform a role which will be new to them.
Nonetheless, the Bill is an important first step towards the formulation of a common body of rules of court which will be intelligible and uniform. The work will be done by a committee which is big enough to be representative and small enough to be effective. This is the right place to start and I am sure that the Bill will earn your Lordships' wholehearted support.
I simply say this with reference to one of the points which the noble Lord, Lord Irvine of Lairg, mentioned. I refer to the need for co-operation between Bench and Bar to make these reforms effective. We are all very conscious of that need. I can only say that on every occasion when I have asked for the co-operation of the Bar and legal advisers representing parties in order to seek to achieve a hearing of an appeal in a case much shorter than the parties had planned for, I have never failed to achieve total co-operation; and I have never afterwards heard any complaint that the parties felt they had had an inadequate hearing. I join with those who have already spoken in welcoming the Bill.
4.18 p.m.
Lord Thomas of Gresford: My Lords, Gresford is a name which will resonate with some of your Lordships as the scene of a terrible mine disaster in 1934. My father, as an ordinary policeman, was on duty at the pithead that day, assisting the rescue teams to do what they could. But, as your Lordships may recall, the particular horror of that disaster was that 254 bodies remained buried in the Dennis seam, only seven were recovered, and fewer than 10 people escaped from the night shift at that time. It is a matter of great humility and pride that I have been permitted to add the name of Gresford to my own.
On 23rd February 1937, about a fortnight before I was born not more than a mile from the pithead at Gresford, there was a debate in the other place on the
Gresford disaster inquiry. The Secretary for Mines, Captain Crookshank, was interrupted by the voice of an honourable Member who said, "We shall never forget them". I hope that noble Lords will permit me at this moment, when first addressing your Lordships with the privilege of that name added to mine, to remember them as well.I was an articled clerk in the firm of the coroner for east Denbighshire who carried out the inquest into the Gresford disaster. I learnt my civil procedure from the roots up. I shall not weary the House with my expertise in writs of fi. fa. and garnishee orders nisi. It was in personal injury litigation in an area of coal and steel and heavy industry that we made our living. We were concerned with broken limbs and broken spirits. We were concerned with the lives of ordinary people who were fighting nationalised industries and large institutions. I remember a man who lost eight fingers in a press. I remember another who damaged himself holding up a steel arch underground at Ifton colliery, a case which eventually went to the divisional court and to the noble and learned Lord, Lord Bridge, who was on the other side. I am pleased to say that we won.
I recall with great amusement the case where I spent a fortnight working at a brief. I examined the cases and analysed the evidence in a way that would surprise some noble Lords who sit on the Cross-Benches. We were instructing Elwyn Jones QC, leading the tiger of the Chester Bar, Emlyn Hooson. I arrived in the antechamber at Chester Assizes as an articled clerk, to wait for a fortnight where I could listen to the masters at work, whereupon Elwyn Jones came breezing in saying, "Emlyn, Parliament sits tomorrow. We must settle this case". And settle it they did. I am sure that noble Lords remember the former Lord Chancellor with great affection, as I do. He invented fast track litigation. He had a keen sense of his priorities.
I need no persuading that the procedures of civil litigation need reform. I recall the case of a housing estate built on top of a hill above a Welsh town where the sewage works was overflowing, and every time it rained the sewage bubbled up from the manhole covers and landed in the living-room of my client. I came into the case shortly before the trial, 14 years after the proceedings had been commenced. In that time the house had been declared unfit for human habitation; his marriage had broken up; and he had had a nervous breakdown. It so happened that on the Saturday before the hearing I saw my opponent in the local rugby club and said to him: "You've no defence". He said, "I know. How much do you want?". That was the end of the case after some 14 years.
So far as the report of the noble and learned Lord, Lord Woolf, is concerned, I was very pleased to receive a letter in July from the noble and learned Lord which contained the statement, "I hope that the report and the rules will contribute to the enjoyment of any holiday you are about to have". Let me assure the noble and learned Lord that it most certainly did. As I sat in the current with the sun warming my back and listened to the wind in the Scots pines above, I thought and mused idly on his Lordship's colour consciousness. I thought how fitting it was that we should have a "forest green" volume one, with a
"pine bark" volume two to follow, and what a shame it would be for me to open it and frighten the fish with the white interior.The noble and learned Lord's report is monumental. It marks the end of lengthy and happy co-operation between members of the legal profession on all sides. I hope to see in the legislation that is passed support for the idea of a civil justice council, which would maintain that co-operation and make sure that the ongoing rules that are provided are acceptable to all sides.
The Bill itself is decidedly slim. It is a little disappointing, after seeing the report, to come upon this slim document. I was reminded, since it is election day in America today, of the slogan from some elections ago, which I offer freely to noble Lords on the Benches opposite to use against New Labour: "Where's the beef?". This Bill is perhaps a very small start to what will be a very considerable venture in reform.
The fast track procedure must not substitute discipline for justice. I know that that is not the intention of the noble and learned Lord, Lord Woolf. I was myself subject to his case management some three or four years ago. I did not realise that I was the pilot. As with all experiments, we stretched him to the limit and his patience and good humour survived that test--well, almost, anyway. The objectives of his report are admirable: to deal with cases justly and to have parties on an equal footing--to have equality of arms. To pay the noble and learned Lord the highest compliment, those objectives assort well with Liberal values.
My worry relates to matters lower down the scale: namely, that procedural rules could become instruments of bullying tactics. A country solicitor, such as I once was, can be faced with a distressed person who has no idea what the particular problem is. It is for the solicitor to identify the problem and put it into legal form. He has no control over the time it takes for expert reports to be received, for medical reports, for disclosure, for counsel to return the papers, for legal aid committees and so on. I am concerned that the disciplines that are laid down in the fast track procedure towards which the rules promulgated in the Bill will point will be used fairly, liberally and justly, as I know the noble and learned Lord has in mind.
The final matter I wish to raise is that of fixed costs. There is no change in the burden of proof. A solicitor will be as liable for negligence with the fast track procedure as he is at the present time. I am concerned that cost may reduce damages. I welcome the statement by the noble and learned Lord the Lord Chancellor in relation to this matter and on the way in which he proposes to implement the report. I regret that there will be no debate on the Floor of this House on some of the principles that lie behind the report.
Large institutions can look after themselves; I am not concerned about them. They only fight about who pays, which is the issue between insurance companies and large companies. Courts, however, deal with people. Courts cannot always repair the damage to people's health and to their lives; nor can they right every perceived wrong. Even the litigant who fails must feel that he or she has been treated fairly and that the case has been heard and
has not been rushed. I am sure that that is the thrust of the noble and learned Lord's reforms. I welcome them, and I welcome the plain English in which they will be expressed. I thank noble Lords who have spoken for the welcome they gave to me.4.28 p.m.
Lord Woolf: My Lords, it is a privilege that falls upon me to have the opportunity of conveying your Lordships' congratulations on an outstanding maiden speech. It covered the emotional beginnings of the noble Lord's life. It dealt wittily with his experiences on the Wales and Chester circuit and made a real contribution to the question that lies behind the Bill before the House; namely, the question of access to justice.
I hope that this will certainly not be the last opportunity that I shall have of hearing the views of the noble Lord on that subject. I know that the House will wish to hear him express the same oratory in relation to many other issues as well.
The contributions to the debate which have already been made today mean that my remarks can be brief. In making them, I am conscious that when I delivered another report, I exercised a self-denying ordinance and did not speak on the subject of prisons for over a year. I am conscious that some thought that even that period was too short. I am also conscious that your Lordships may feel that I would be wise to follow that example. However, I want to speak to your Lordships, first, because I wish to express the debt which I believe is owed to the noble and learned Lord the Lord Chancellor by all those who are concerned with the reputation of civil justice in this country. It was his vision that recognised the need for the system of civil justice to be fundamentally reformed. During the two-year period of my inquiry he gave me all the support and encouragement that I needed to produce my report.
The other reason I am glad to have this opportunity of making a few remarks is that I wish to commend the Bill very firmly to your Lordships. As was pointed out, it is admirably brief. It may lack beef, but it contrasts favourably with the 360 pages of my report which some took on holiday. Within its seven pages, it provides the means of achieving the reforms which I have recommended. It does so because it provides for a single new rule committee which can establish the simplified and streamlined procedures which are an essential part and which are at the heart of the reforms I recommend.
The production of the rules may seem a heavy responsibility for the new rule committee, but it has been the traditional responsibility of rules committees in the past. There is to be one rule committee in place of the two rule committees that now exist. That is hardly a radical proposal, as it was first recommended by the Judicature Commission of 1872. It is time that that recommendation was enshrined in the Bill.
The new rules are expressed in simple English so that they can be readily understood by a layman. That is a radical departure which is not easily achieved and I wholly approve of the requirement in Clause 2(5) that the rule committee should do its best to draft rules which are,
- "both simple and simply expressed".
Under my proposals, instead of the existing bewildering choice of procedures for commencing proceedings, there will be but one. So far as possible, all procedures will be the same and in consequence the technical in-fighting over whether the right procedure has been selected, to which the noble Lord, Lord Meston, referred, should become a thing of the past. Both the judiciary and the litigant will have for the first time a responsibility to conduct proceedings expeditiously and economically and in a way which will achieve equality between the parties. I emphasise that, because the draft rules place the responsibility both on the courts and on the parties.
In that respect, I welcome what the noble Lord, Lord Irvine of Lairg, said with regard to the need for co-operation. It is at the heart of my proposals that there should be co-operation. It was as a result of the co-operation which I received from both sides of the profession and from many others involved in the civil justice system that I was able to make my recommendations. They recommend protocols which are ways of dealing with cases appropriately which are drawn up with the agreement and consensus of those who are involved. The whole basis of the reforms requires consensus. Therefore, I hope that the noble and learned Lord has little to fear from the kind of confrontation to which he referred.
The reforms are a distinct package for change, but similar reforms have been or are being introduced in New Zealand, Australia and Canada, and they have also been introduced in parts of the United States. I appreciate that there may be differences of opinion as to detail, but in general there is consensus throughout the common law world that the direction which I recommended is the way in which we must all go.
Of course, additional resources are needed to introduce the reforms, but in due course they will more than pay for themselves. What we need to ask is whether we can afford to do without them. As a country with what is meant to be an enterprise economy, we cannot afford to have a justice system that does not work. An efficient justice system is important to the individual member of the public. Such people do not obtain justice if the system is one that they cannot afford.
The quality of the system is also important to the City, industry and commerce. It is important to the Legal Aid Fund which is paying out more and more in order to benefit an ever-reducing percentage of the population. It is important to the hospitals and local authorities which find that they are spending more and more of the resources which should be spent on treating patients or repairing houses to pay for excessively expensive litigation.
There are two concerns, however, which have been expressed to me as to the Bill. The first is one which has already been mentioned to your Lordships, as has the second. The first is whether the Bill enables representatives of the consumer bodies to be members of the proposed new rule committee. Clause 2(2)(g) refers to,
- "two persons with knowledge of the working of the courts".
As a result of my inquiry I can say, I hope without fear of contradiction from the noble and learned Lord the Lord Chancellor, that consumer bodies today have among their
staff many representatives who would be so qualified. I hope that, as appropriate, they would be represented on the new rule committee.The second concern is the absence of any reference to a civil justice council, the creation of which I recommended. I see the council as a central plank to my recommendations. It will be the means of ensuring that a reformed civil justice system remains responsive to the needs of the public. It is also the necessary companion to a compact small rules committee. However, the creation of the council does not need statutory backing and I hope that I can persuade the noble and learned Lord the Lord Chancellor of the importance of and the need for the council.
I therefore, for the reasons which I have outlined, give the Bill my unqualified support. It is a Bill which, while modest in size, could be a powerful engine for the reform which our civil justice system needs.
4.39 p.m.
Baroness Wilcox: My Lords, I join with those who have already spoken in welcoming the Bill. I believe that I speak as the only layman here today and assuredly the most nervous, certainly more nervous than the noble Lord, Lord Thomas of Gresford. He made a splendid maiden speech and now I find that I follow the noble and learned Lord, Lord Woolf, whose masterly report brought us here today.
The Bill is the instrument that will breathe life into the new rules and thus into the proposals of the noble and learned Lord. It takes forward not only the letter of the 1996 review but also the spirit as embodied in the statement on page 12. I shall not read it because in Clause 2(2)(g) of the Bill lay members are defined as,
- "two persons with knowledge of the working of the courts".
That is a point which has already been picked up and noted today by the noble Lords, Lord Irvine and Lord Meston, and by the noble and learned Lord, Lord Woolf, himself. It is a broad term and I am unclear whether it means individuals from consumer and advice organisations, as the noble and learned Lord recommended. I would like clarification that "lay members", as defined in Clause 2 of the Bill, means what the noble and learned Lord, Lord Woolf, intended.
I welcome the requirement in Clause 2 that the rules should be both "simple and simply expressed". The charm of the mystery and history of the process of the law and its language, so beloved of many of its most celebrated practitioners, is often lost on those whose cases they are in practice to resolve. I believe it is important that all users of the courts should be able to comprehend the rules by which they are expected to abide.
There is to be a rule committee. There is to be one set of rules which will govern both the High Court and county court and, rather than a hugely detailed and complicated body of procedure, there will at last be a procedural code to further the overriding objective. The rule committee will be setting and amending rules. Some of those rules will be fairly routine but others could result in a considerable change of policy. Once those rules reach Parliament, there will be little chance of changing them. I
recommend that the rule committee consults with outside organisations about any significant changes to the rules which result in a significant change in policy.The provision in relation to pre-action disclosure in Clause 7 gives courts power to require the parties in the dispute to make relevant documents available to one another before a legal action is started. That should encourage earlier settlements and a less adversarial approach to resolving disputes. I welcome that; in fact, there is much to welcome for the consumer.
The noble and learned Lord, Lord Bingham, tells us that the legal profession also welcomes the Bill. Perhaps some noble and learned Lords--and no doubt my son, if I had asked him, and his fellow barristers--have concerns about case management by the courts. Will judges be given time to read papers beforehand? Will there be sufficient training? Will improving the process still maintain the quality of the outcome? And the great worry for a barrister like my son and his young colleagues is whether work will be lost.
Those are genuine concerns with which we--especially me--sympathise. Those worries stem from a genuine concern. Court procedures must not change just to save money or for fashionable change's sake. I believe we all agree that the civil justice system needs to change. It often fails ordinary people because it is slow, expensive and incomprehensible. Ordinary people turn to it to sort out family matters, personal injuries, debt problems, housing problems--often things that deeply affect their lives.
The proposals of the noble and learned Lord, Lord Woolf, represent to the consumer a real hope of change. Of course, case management by the courts will not spring full blown from the head of Zeus. It will be an evolutionary process, with all of the key players having to contribute to that evolution. I am told that in some courts the first cautious steps are already being taken.
The noble and learned Lord the Lord Chancellor made plain to us his enthusiasm for the reforms and his plans to continue the momentum to implement them in careful stages, with monitoring and evaluation of their impact. On the consumer side the proposals were warmly welcomed by the National Consumer Council and many other consumer bodies which were consulted along the way. From their viewpoint it is not only the letter but also the spirit of the proposals which must be retained. That is why I urge that one key element of the Bill is particularly carefully implemented. In his final report, at page 273, the noble and learned Lord, Lord Woolf, wrote:
- "To help carry forward the work ... I set up a small working group ... To my knowledge, this is the first time on which representatives of consumer and advice organisations have been directly involved in the preparation of rules of court. I recommend that they should have a permanent role as a counterbalance to the professional legal viewpoint in the new rule-making committee which will be needed to enact the combined rules".
I urge the noble and learned Lord the Lord Chancellor to be visionary: to follow up the successful experiment of the noble and learned Lord, Lord Woolf, with an Act which gives permanent places on the committee to a representative from the lay advice sector and a
representative from consumer groups. We all have much to gain from the change. Let us not be afraid to make it. I commend the Bill to the House.4.45 p.m.
Lord Ackner: My Lords, I am deeply conscious from my place in the speakers' list that my position is that of a long stop--and I do not propose that your Lordships should stop very long!
I should like to add my congratulations to those already indicated to the noble Lord, Lord Thomas of Gresford. Indirectly he has already made a considerable contribution to the work of this House. It was his letter of resignation from the Criminal Injuries Compensation Board, explaining that he was resigning in relation to the proposed tariff scheme which the Home Secretary--as was subsequently found--intended unlawfully to impose that gave rise to the debates in this House and subsequently led to the whole of that proposal being quashed.
I want to take up one point essentially which relates to resources. The Explanatory and Financial Memorandum says:
- "The Bill paves the way for implementation of the recommendations contained in the Report by Lord Woolf to the Lord Chancellor on the civil justice system in England and Wales".
It goes on to say, under the heading "Financial Effects of the Bill",
- "The Bill is not expected to have any significant financial implications".
That is right. But the proposals of the noble and learned Lord, Lord Woolf, will have "significant financial implications".
There has been reference to the fact that judicial case management is already in existence. But that is largely on a quite different level to that being contemplated. The commercial judge is a specialist in his field. In all likelihood he has been a successful commercial silk at the Bar and his ability to case manage is in-built as a result of his own special circumstances. That applies to other fields in the High Court.
However, what is proposed is that the judicial case management shall be carried out by the lowest rung of the professional judge; that is, the district judge. He does an immense amount of good work in the county court and sits there as an arbitrator doing valuable work on small claims recovery. But he is not experienced in the cut and thrust of litigation. He is rarely a member of the Bar--I do not say that in any critical sense but as an indication that to a large extent his experience is the office experience of an experienced solicitor. Therefore, considerable resources will have to be provided for his training.
The point was raised by the noble Lord, Lord Irvine, as to whether there would be any need for an increase in judicial power. I believe that it is inevitable that there will have to be a sizeable one. First, the district judge will need time to read up the papers, to understand them. He cannot manage a case unless he fully understands the implications. If he arrives at a directions meeting not having fully considered the material in the case, the odds are that he will be merely accepting what the parties propose and we shall be back to square one. Secondly,
among the district judges there will inevitably be those who say, "This is not a field of work with which I find I can happily cope"; so that will involve an increase in judicial appointments. There is also the point that has been raised in the more complex cases of the "law clerks" system being imported from America. That will provide the judge with the assistance of an outstanding law graduate of his year and will again be an expensive matter.I urge the Lord Chancellor to give us the assurance that the admirable work done by the noble and learned Lord, Lord Woolf, will not run the risk of failing to produce expectations which everyone has by reason of being deprived of resources.
I wish to raise one other matter on education. It relates to the legal profession. In the three or fours years since I retired I have been involved in arbitrations. Arbitrations are the type of alternative dispute resolution where one would expect settlement to be utmost in the minds of those involved. In my experience, settlement is usually the result of a halfway interim award or maybe the result of the parties hearing the conclusion of cross-examination and submissions. Yet because of the adversarial culture, it takes a quite unnecessary length of time for the idea of settlement to become the focus of the advisers to the parties and the parties themselves.
One does not have the benefit of seeing the pre-trial correspondence in any great detail as the trial judge or even the appellate judge. The strength of feeling to be found in pre-trial correspondence between experienced, sensible solicitors in charge of the dispute on both sides is quite startling. They churn out letters which are offensive to each other; in many cases they build up their practices on competing aggressiveness; copies are sent to the lay clients, who apparently enjoy it; and as a result the expectation among the lay clients is that there will be one hell of a battle and their representative will be the champion who wins. All of this has to be de-escalated down without grossly disappointing the lay client in order to obtain his agreement to settlement. The burden usually falls on the arbitrator or the trial judge to try to bring reality onto the scenes.
All that is quite wrong. If the culture changed so that the advisers basically said to the litigants on each side, "Look, usually the best solution to disputes is to achieve a sensible settlement. The best way of achieving a sensible settlement is for me to write a sensible letter to the other side, not full of aggressiveness but full of reason, and to encourage the other side so to respond. So don't be disappointed if you see a letter of sweet reason. It does not mean that I am not ready to fight with enthusiasm if we come to court. But until that event occurs, let me make the best possible attempts to settle your case". We are far from reaching that situation. That is where the education of future judges in case management should be supplemented by education by the professional bodies of their own members with a view to seeing whether disputes cannot be dealt with very much more quickly by achieving the settlement which is usually appropriate in 95 per cent. of cases.
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