Woolf, the adversarial system and the concept of blame.

Abstract

The Woolf reforms, more properly the Access to Justice – Final Report 1996 (Lord Woolf, 1996), heralded a new age in civil litigation, at least according to its admirers. The days of secrecy and suspicion, insurance-driven defensive pleadings, delay for delay's sake would give way to court-directed procedures, streamlined to be in the interest of all. For the smaller claim, new alternative dispute resolution (ADR) measures would replace the expensive lottery of litigation. The Principles upon which the Report were based are worthy of reproduction: ‘The system (civil justice system) should: (a) be just in the results it delivers; (b) be fair in the way it treats litigants; (c) offer appropriate procedures at a reasonable cost; (d) deal with cases with reasonable speed; (e) be understandable to those who use it; (f) be responsive to the needs of those who use it; (g) provide as much certainty as the nature of particular cases allows; and (h) be effective: adequately resourced and organised’ Medical negligence cases were given a section of their own because: ‘early in the Inquiry it became increasingly obvious that it was in the area of medical negligence that the civil justice system was failing most conspicuously to meet the needs of litigants in a number of respects. (a) The disproportion between costs and damages in medical negligence is particularly excessive, especially in lower value cases. (b) The delay in resolving claims is more often unacceptable. (c) Unmeritorious cases are often pursued, and clear-cut claims defended, for too long. (d) The success rate is lower than in other personal injury litigation. (e) The suspicion between the parties is more intense and the lack of co-operation frequently greater than in many other areas of litigation.’ It is too early to assess how well the new system will eventually work. Nonetheless, certain trends are becoming clear. The purpose of this article is to describe those trends and to touch upon the broader question: does the adversarial system itself contribute to the ills Lord Woolf, then Master of the Rolls, now Lord Chief Justice, set out to cure? 1. Power to the courts The central theme of the reforms was to shift control of a court case from the parties to the judge. The thinking behind this reflects the observed behaviour of both sides in a civil dispute. In most cases involving a claim for compensation, whatever the grounds, the plaintiff always wants his case heard as quickly as possible, and judgement to be entered thereafter in the largest possible sum. The defendant, in contrast, would prefer the case never to be heard at all and, if it be unavoidable, to limit the award of damages to the smallest possible amount. Woolf clearly thought that the civil procedure rules for both High Court and County Court unwittingly aided and abetted this unwholesome pas de deux. Inferentially, he also thought that lawyers did their utmost to perpetuate the grinding delay inherent in a system that seemed to reward, or at least, inadequately punish the unscrupulous and the unreasonable. The answer: give power to the courts. Once a claim has been filed, strict time limits govern every step of the way. Fall behind and your claim, or your defence, will often be struck out. Court orders as to discovery (disclosure of material the other side would usually prefer you not to see), inspection and the usual panoply of pretrial issues would also be subject to the same regime. The immediate consequence of the implementation of this came as something of a surprise but, in hindsight, should not have done so. There has been a huge growth in what I will call ‘secondary litigation’: in short, litigants suing their lawyers, because the lawyers have failed to live up to the demands of Woolf. Plaintiffs have had their cases struck out because of missed time limits, and defendants have suffered similarly in the summary dismissal of their defences owing to the default of their solicitor. They both then sue their own legal teams. As no one weeps for lawyers, is this a cause for concern? The answer is yes, because ‘secondary litigation’ of this kind is manifestly not in the public interest; an alleged victim of negligence should not end up seeking redress from someone other than he who caused the injury. Further, as lawyers are insured, and as insurance companies behave as model defendants under the old system, some cases of this type are being litigated on the basis that the plaintiff (as against his own former lawyer) would not have won anyway, or not as much as claimed, as the now long-departed defendant had a good case! Secondary litigation may, and probably will, prove to be a short-term phenomenon. Solicitors who cannot meet their obligations under Woolf will, in time, either merge with other firms or cease practising in this field as insurance becomes increasingly difficult to fund. 2. Faster and cheaper? One consequence of Woolf has been to ‘front load’ the costs of litigation, which may well act as a deterrent to the issue of proceedings or bring them to an untimely, and perhaps unsatisfactory, end. Before Woolf, one of the first acts of an injured party was to issue a writ. This was seen as the necessary first step after the ‘letter before action’. Thereafter, the plaintiff could more or less dictate the pace of events; acting with haste should there be a risk of dissipation of assets, or more leisurely should the desire be ultimately to settle. After Woolf, the issue of proceedings brings with it an inflexible timetable, which must usually be funded in advance. Claimants of limited means (everybody, save the very rich and the very poor) cannot take the risk of embarking upon the prosecution of their claim unless their solicitor has taken the case on a contingency fee basis. Lawyers are not charities. It is highly improbable that a solicitor will take on a case on such a basis unless the prospects of winning are high, and the costs of pursuing it are not huge. This rules out most serious medical negligence cases. What about legal aid? As free dentistry is to the National Health Service (NHS), so is legal aid to civil litigation. Successive governments over the past 10 years have set about capping, reducing and, for many people for most purposes, effectively abolishing civil legal aid. Nonetheless, legal aid remains by far the largest source of funding for medical negligence cases (this is not surprising: the more serious cases will still qualify under the new rules, as the claimants will be either incapacitated or children, or both). Woolf highlighted the absurdity of this situation: the taxpayer was effectively funding both parties to the detriment of all, including the wider public. Because of the particularly slow pace of medical negligence cases before the stage of the issue of proceedings, it is simply too early to say what affect Woolf has had on this class of claim and, further, whether fewer cases are now being brought. 3. Fairer? No system of justice sets out to be anything other than fair. The Woolf reforms included the premise that the system could be made fairer still by the removal of certain ills, notably delay and cost. He could have permitted a greater degree of judicial discretion in the operation of the new regime. He did not, presumably fearing that the ‘natural conservatism’ of the lawyer would undermine the new system; in short, lawyers are presumed to be overly generous to other lawyers (not my own experience). If the long-term effects are that fewer cases are brought, because cases are now too expensive to start, let alone finish, and such cases that are pursued start late in order to avoid the rigidity of the court's own rules, then it is questionable whether the new is any ‘fairer’ than the old. Future statistics will suggest the reverse (fewer cases, less apparent expense, no significant delays); such trumpeting of success will need to be treated with care. 4. Alternative dispute resolution (ADR) Alternative dispute resolution has been around for at least 25 years. Its proponents saw it as an alternative to both (commercial) litigation and arbitration. As such, it has flowered, or at least germinated, in contracts between certain large companies in their dealings with each other. The belief was that ADR would let higher ranking executives on both sides come together at an early stage in a dispute, and thereby save corporate time, money and goodwill. At what point ADR was perceived as capable of near-universal application is not clear. I suspect that the answer (as ever) is cost: as government sought any route out of the rising cost of funding an increasingly litigious population, ADR perhaps provided the most solid-sounding means of escape. As a result, ADR became the preferred means of dealing with everything from divorce to medical negligence. Woolf is most revealing about this, reflecting (I infer) government wishful thinking rather than a lawyer's grasp of the reality of human nature. According to Woolf, medical negligence litigation could at times be avoided because: ‘Proceedings often start because the claimant cannot get the information he is seeking, or an explanation or apology, from the doctor or hospital. Historically, solicitors have had no alternative but to advise legal action, which is unlikely to be appropriate in all cases unless the client’s main or only objective is to obtain financial compensation.' The alternatives suggested included face-to-face meetings (confrontations?) between the aggrieved patient and the allegedly erring doctor. I know of no solicitor who has issued proceedings simply to get information. However, it was commonplace to seek discovery of withheld documentation, the better with which to pursue an existing claim. The new regime makes this a difficult course to pursue. Further, I have heard of no litigant who has endured years of pressure and cost, simply for want of an apology. Woolf returns to this theme again: ‘It is fundamental to my approach to civil litigation in general that legal proceedings should be treated as a last resort, to be used only when other means of resolving a dispute are inappropriate or have failed. When someone has a potential negligence claim against a doctor or hospital, the first essential step is to find out what the patient wants to achieve. If his or her main need is for substantial financial compensation to cover future loss of earnings or the cost of continuing care, then litigation may be (but is not always) the best way to proceed. If the patient is chiefly concerned to get an explanation or apology for what went wrong, or to ensure that procedures are changed so that future accidents can be avoided, then litigation is less likely to be the best course. Recourse to the NHS complaints procedures and, if necessary, the Health Service Ombudsman, may offer a more appropriate means of redress’. There is something a little odd about a report into the machinery of civil justice that is so distrusting of the courts as the best means of delivering it. Years of lawyer bashing ensure that such doubts would receive a ready nod of acknowledgement from the wider public. Yet what realistic choice does a claimant have but to embark upon litigation? ADR, or a variant entitled ‘mediation’, has been heavily promoted as the alternative to expensive litigation in the Family Division. As family lawyers knew perfectly well, couples at war with each other are not seeking the sort of ‘resolution’ that ADR offers, much less reconciliation. The sine qua non of ADR is that the parties do not really wish to fight or, at least, can be brought to the realization that they have more to lose than to gain. Unsurprisingly, ADR has not lead to the unemployment of the divorce lawyer: for most, all it has added is an additional and often unnecessary layer of intervention between the parties and the court. Is there reason to think that ADR will be more effective in resolving potential medical negligence claims? Central to the hopes of the proponents of ADR is the proposition that there are a significant number of claimants who either do not seek compensation, or will settle for less. I doubt that this class of litigant exists. The incorporation of the European Convention on Human Rights (ECHR) into UK domestic law was preceded by a government media blitz, educating the public as to the new opportunities that would soon exist to permit the citizen to hold public bodies (widely defined) to account. In order to meet the expected avalanche, the whole of the legal profession (through the Bar Council and Law Society) underwent compulsory ECHR training. More High Court judges were to be appointed, and special sittings of the Court of Appeal would rule quickly on cases of public importance. The relationship between government and the governed would never be the same, for now the latter had enforceable rights, and the former, accountable responsibilities. Where was it thought that all these new rights would be exercised? Who was going to pick up the bill? I use the ECHR and the near-hysteria surrounding it as symptomatic of what I perceive to be a deeper malaise: we are, as a society, overly attached to the concept of blame. It is not sufficient that you are right: someone else must also be shown to be wrong. In apparently empowering the individual as against the state, we have moved further away from the acceptance of risk, from the recognition of the fact of accident. Negligence is nowadays such an all-embracing concept that there is little, if any, room for the defence of accident. The results of this way of thinking are slowly seeping into public consciousness. Teachers cancelling the field trip, the rugby coach requiring insurance, the restaurateur seeking an indemnity in advance from his reputable supplier: all join the doctor practising defensive medicine and the lawyer whose advice is so convoluted as to be worthless (but safe). The adversarial system reflects the need to ascribe blame exactly. Neither side is encouraged to do other than find fault in, belittle and, if possible, destroy the opponent's case. By and large, the greater the lawyer's expertise in attrition, the more successful he will be as a litigator. Woolf clearly recognized that his reforms could be construed as an attack upon the adversarial system itself. He set out to reassure: ‘There are those who have misgivings about the need for my proposals and their ability to effect beneficial change. Concern has been expressed that my proposals for case management will undermine the adversarial nature of our civil justice system. The concerns are not justified. The responsibility of the parties and the legal profession for handling cases will remain. The legal profession will, however, be performing its traditional adversarial role in a managed environment governed by the courts and by the rules which will focus effort on the key issues rather than allowing every issue to be pursued regardless of expense and time, as at present.’ Warfare as usual, but with the court limiting the size of the battleground and the duration of hostilities. Are the recommendations (now almost all in force) consistent with an adversarial system? ADR and adversarial representation are opposites. Judge-led case management also removes control over litigation from the parties. Despite the reassurance cited above, it is difficult to escape the conclusion that the Woolf reforms amount to a serious attack on the adversarial system proper. Yet this unacknowledged assault applies to procedure, not substantive law. Warfare, as I have characterized it, still remains at the heart of litigation and, as every schoolboy know, the first casualty of war is truth. Woolf makes cases quicker, shorter and, perhaps, less expensive. It does not make them any more likely to reflect the historical truth of the events that give rise to them. There is a British conceit based ultimately upon the assumed fallibility of man. It is this: truth is unknowable, so a legal system should content itself with expressions of probability, for such expressions are more likely than any vain search to approximate truth. Judges therefore are traditionally passive, awaiting the exertions of the parties on either side before deciding who has better discharged the burden of proving or disproving the case. ADR finesses the whole question of truth and seeks ‘consensus’. Consequently, it fails wholly to provide either party with a sense of moral superiority. This I see as its strength. A society more than half in love with the apportioning of blame is unlikely to share this view. Could Woolf have gone further towards dismantling this British conceit, replacing it with a ‘continental-style’ search for truth or, more radical yet, some sort of no-fault compensation scheme funded by compulsory insurance? Undoubtedly, he could have done so. Yet his Report must be seen in part at least as reflecting that which Woolf thought would be acceptable, as opposed to what might have been ideal. The Woolf reforms curtailed the operation of the adversarial system in civil cases. Unbridled adversarial litigation was criticized as being neither in the interests of most litigants nor serving the interest of society at large. Substantial as this curtailment is proving to be, confrontational litigation remains at the heart of civil law. The reforms may have addressed the excesses of lawyers, but left untouched the body of law that permitted those excesses to flourish. It is too early to judge whether the delivery of civil justice is fairer and cheaper. It is certainly quicker, but only from the date of issue of a claim. Future statistics therefore need to be examined with an unusual degree of care. Confrontation and conciliation are mutually exclusive. ADR and an adversarial system will never happily co-exist. The emphasis upon individual rights, divorced from (ethical) notions of responsibility risk and accident, encourages litigation to the detriment of society at large.