Civil Justice System
‘This is the Court of Chancery… which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is no tan honorable man among its practitioners who would not give – who does not often give – the warning, “Suffer any wrong that can be done you, rather than come here”. ’ (Charles Dickens, Bleak House, 1853, Penguin Classics 1971: 51) To what extent, if any, does this warning hold true today in the civil justice process?
The civil justice system is designed to sort out disputes between individuals or organizations. One party, known as the claimant, sues the other, called defendant, usually for money they claim is owed or for compensation for a harm to their interests, like for example the victim of a car accident suing the driver of the car for compensation. But, however, filing a law suit or claiming damages has not been as easy as it theoretically seems, especially in the field of civil justice.
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It can be easily observed from the history of English Civil Justice System how things used to and still work. It cannot be better explained in the following: ‘Jarndyce v Jarndyce drones on. This scarecrow of a suit has, in the course of time, become so complicated that no man alive knows what it means. The parties to it understand it least;….. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it…. here are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee house in Chancery Lane; but Jarndyce v Jarndyce still drags its dreary length before the Court, perennially hopeless [Bleak House, 1853, Charles Dickens]. Holdsworth1 makes much of the fact that Dickens’s novel opens in physical fog and this fog is indicative of the system at the time. Holdsworth points to problems within the system at this time. First, the official machinery of the system was medieval and had been relatively unaltered since that time.
Second, the practices of the court had become so technical and so slow and even in uncontested cases the delays were indefensible. Even where new procedures were introduced to attempt to reform the system so the old procedures continued to operate because it was in the officials’ interest for them to do so. Holdsworth notes that just as Gibbon had commented on the operation on Roman law in much the same way the procedure of the court of Chancery was a ‘mysterious science and a profitable trade’2.
At this time there were two main types of courts: (a) Courts Of Common Law, applying the precedents, principles, and rules developed over time by the judges and (b) the Court of Chancery, dealing with disputes regarding property and deciding on the principles of equity. Equity, often derided as discretion varying with the length of the Lord Chancellor’s feet , had built up sets of procedures and rules as complex as common law, thus, Chancery was ineffective, expensive and technically difficult.
The extent of delay, complication and therefore expense of civil litigation may have changed since the time of Dickens’ observations, but how far has it changed or has increased in efficiency is a matter of some debate. According to Civil Justice Review (CJR) 1988, delay in litigation ‘causes continuing personal stress, anxiety and financial hardships to ordinary people and their families. It may induce economically weaker parties to accept unfair settlements. It also frustrates the efficient conduct of commerce and industry’. The change in the legal system has been slow and gradual.
The report of the CJR was largely ignored. The whole process began again with the Woolf Review of the Civil Justice system. In March 1994, the Lord Chancellor set up the Woolf Inquiry (headed by Lord Woolf) to look at ways to increase speed and accessibility of civil proceedings, and of reducing their costs. Lord Woolf began from the proposition that the system was ‘in a state of crisis…a crisis for the government, for the judiciary, and for the profession’. The recommendations he formulated form the basis of major changes to the system that came into effect in April 1999.
David Gladwell, head of the Civil Justice Division of the Lord Chancellor’s Department (LCD), stated (Civil Litigation Reforms, 1999, LCD, p1) that these changes represent ‘the greatest change the civil courts have seen in over a century’. When Lord Woolf began his examination of civil law process, the problems facing those who used the system were many and varied. His interim report published in June 1995 identified these problems. He noted:’…the key problems facing civil justice today are cost, delay, and complexity.
These three are interrelated and stem from the uncontrolled nature of the litigation process…. Just as the problems are interrelated, so too are the solutions, which I propose are interdependent. In many instances the failure of previous attempts to address the problem stems not from the solutions proposed but from their partial rather than their complete implementation [Access to Justice, Interim Report of Lord Woolf, 1995]. Research carried out for Lord Woolf’s report found out that in 40% of claims under 12,500 pound sterling, one side’s costs exceeds the amount in dispute.
This is also because of the complexity of the process which makes appointing a lawyer compulsory, increasing costs in return. Also the sheer length of the case affects the size of the bill at the end. Time limits were placed for every stage of an action, but it was openly disregarded b y both lawyers and courts. Long delays placed intolerable psychological and financial burdens on accident victims and undermining the justice of the trial, by making it more difficult to gather evidence which was then unreliable because witnesses had to remember events which happened several years before.
The adversarial nature of the process did not help much either, as it encouraged tactical maneuvering rather than cooperation. It would be far cheaper, time saving and simpler for each side to state precisely what it alleged in the pleadings, disclose all the documents held, and give exchange witness statements. Moreover too much emphasis was laid on oral evidence at trial, which can appropriately be substituted by written evidence statement, reducing costs and speeding up the process. The Woolf Reforms were implemented by the virtue of the Civil Procedure Act 997 and through the Civil Procedure Rules (CPR) in 1998, which are considered by many to be one of the biggest changes in the civil system in a century.
These have been supplemented by new practice directions and pre-action protocols. The overriding objective of the new CPR is to enable the court to deal justly with the cases, with respect to ensuring that the parties are on an equal footing and saving expense the rule reads: 1. 1(1) these rules are new procedural code with the overriding objective of enabling the court to deal with cases justly. When exercising any discretion given by the CPR, the court must, according to r 1. , have regard to the overriding objective and a checklist of factors, including the amount of money involved, the complexity of the issue, the parties’ financial positions, how the case can be dealt with expeditiously and fairly, and by allotting share of the court’s resources while taking into account the need for others. In future, as judge john frenkel observes (‘on the road to reform’1998) ,’the decisions of the Court of Appeal are more likely to illustrate the application of the new rules to the facts of a particular case as opposed to being interpretive authorities that define the meaning of the rules’.
The language of the process was simplified so as even a common man can know what was happening. All Latin words were replaced by English vocabulary, plaintiff became claimant, where as defendant remain unchanged. Practice directions (official statements of interpretative guidance) play an important role in the new civil process. They tell the parties what the court expect of them in respect of documents to be filed in court, and how they must cooperate with the other party . pre-action protocols (PAPs) introduced in the new reforms, exist for cases of clinical disputes, personal injury, construction and engineering disputes, defamation, etc. tc. In the Final Report on Access to Justice (1996), Lord Woolf stated (chapter 10) that PAPs are intended to ‘build on and increase the benefits of early but well informed settlements’.
He said that the purpose of the PAPs is: (a) to focus the attention of litigants to settle disputes without litigation. (b) To enable them to obtain the information they need in order to enter into an appropriate settlement…. (d) If a pre-action settlement is not achievable, then lay grounds for expeditious conduct of proceedings. The court would also be onitoring case progress by using a computerized diary monitoring system (CPR PART 3), which includes encouraging the parties to cooperate with each in the conduct of the proceedings, identifying the issue at an earlier stage, deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others and deciding the order in which issues are to be resolved. Under the new CPR, there is a greater incentive for parties to settle their differences, even during the trial (CPR PART 26 and 36).
The court will take into account any pre-action offers to settle when making an order for costs, and a party that has refused a reasonable offer would be treated less generously in the issue of how far the court would order the other party to pay their costs. Experts (CPR PART 35) will be allowed in both written and oral forms, only when the court permits. Also, in order to save costs one expert can be called upon (only by the mutual agreement of both parties) to testify for both parties. Part 7 of the CPR sets out rules for starting proceedings, allocating (CPR PART 26) the case to one of the three tracks for a hearing.
These are: (A) small claims (PART 27), jurisdiction to claims to no more than 5000 pound sterling. In such cases, they are held in public hearings (with the exception to part 39), parties need not to attend the hearing, costs are limited. (B) fast track claims( CPR PART 28), which have jurisdiction to claims of more than 5000 pound but less than 15000 pound. (C) multi track claims (CPR PART 29), which deals in cases with a value of more than 15000 pounds. “We need a positive understanding of the role and value of the civil justice system.
We need a strategy for the cases that we want to encourage into the system and those that we would prefer to discourage and we need to articulate our reasons for both of these choices. Our judgment about the quality of our civil justice system should not be measured simply in terms of speed and cheapness, or by how many cases we can persuade to go elsewhere. Finally, we need to re-establish civil justice as a public good, recognizing that it has a significant social purpose that is as important to the health of society as criminal justice”: by Michael Zander QC, one of the prominent critics of the Woolf reforms.
It was also noted by Zander and by other numerous scholars that the Woolf reforms has shifted the burden from the middle part of the proceedings to the initial stage, not that it has reduced any burdens. However, it is important – as Lord Woolf points out – that there should be continuous monitoring of the major changes proposed by the report and their effect on delay and cost in particular. This monitoring should ideally include research into the effect of the altered procedural climate on the “strategic incentives that drive lawyers” (Issacharoff) or “the dimension of [lawyers’] self interest” (Zuckermann).
The monitoring and research need to be looked at by a Civil Justice Council charged with overseeing developments in civil justice. The reforms’ aim in a nutshell was to simplify the civil process so that even a common man can know what is happening, reduce the costs, so as to make justice available for all and to cut out unnecessary delays, which I believe has been achieved, for changes have been observed by many during the past decade and thus we no longer live with a civil system in our midst which was described by Charles Dickens.