Access to Justice

Access to Justice - Final Report
Contents Introduction

Section I . . . . . Overview

Section II . . . . Case Management
Chapter 1 Introduction
Chapter 2 Fast Track: General
Chapter 3 Fast Track: Detailed Procedures
Chapter 4 Fast Track: Costs
Chapter 5 The Multi-Track
Chapter 6 Sanctions
Chapter 7 Costs
Chapter 8 The Supporting Structure

Section III . . . Procedure and Evidence
Chapter 9 Introduction
Chapter 10 Pre-action Protocols
Chapter 11 Offers to Settle
Chapter 12 Practice and Procedure
Chapter 13 Expert Evidence
Chapter 14 Appeals

Section IV . . . Special Areas
Chapter 15 Medical Negligence
Chapter 16 Housing
Chapter 17 Multi-Party Actions
Chapter 18 The Crown Office List
Chapter 19 Specialist Jurisdictions

Section V . . . . Rules of Court
Chapter 20 The New Rules

Section VI . . . Maintaining the Pace of Change
Chapter 21 Information Technology

Recommendations

Annex 1 . . . . . Inquiry Team and Working Groups
Annex 2 . . . . . The Consultation Process
Annex 3 . . . . . Survey of Litigation Costs (Professor Hazel Genn)
Annex 4 . . . . . Fast Track Flow Chart Access to Justice Introduction
In June 1995 I presented my interim report on Access to Justice to the Lord
Chancellor. Responses to the overall conclusions of the report have been
overwhelmingly favourable; criticism was almost universally confined to the
detail of particular recommendations. The reaction of both branches of the
profession, the judiciary and consumer bodies has been strongly supportive. This final report is accompanied by a draft of the general rules which will
form the core of the new, combined code of rules for civil procedure which
was part of the task set for me by the Lord Chancellor. The report and the
draft rules take into account the many submissions which I have received
since the publication of the interim report. I have paid particular
attention to any expressions of concern or criticism which have been made
about my earlier recommendations. The report also benefits from the
extensive further consultation which has taken place over the last year and
the responses to the issues papers which the Inquiry published in January
of this year dealing with the fast track, housing, multi party actions,
medical negligence, expert evidence and costs.
I have attempted throughout the Inquiry to give the widest possible notice
of my views as they developed. I and members of the Inquiry Team have
worked closely with the Legal Aid Reform Team in the Lord Chancellor's
Department, and have attended numerous conferences and less formal meetings
all over the country where my proposals have been discussed The
organisations I have met range from the governing bodies of sections of the
legal, medical and other professions to a tenants' association in a local
authority tower block in London. I also visited lawyers' offices
specialising in areas of litigation of especial relevance to my Inquiry and
a number of academic institutions.
Both the Law Society and the Bar set up committees which have shadowed the
work of the Inquiry. In addition to holding joint sessions with the Inquiry
they have made formal and informal submissions of great value.
In the second stage of the Inquiry my work on specialist jurisdictions and
special areas of litigation has been carried out with the assistance of
small working groups whose members had relevant specialist expertise and
practical experience. A separate working group was concerned with the
drafting of the new rules of court, and another with the development of
detailed procedures for the new fast track. I am immensely grateful to the
members of the working groups for their wise advice. They are all extremely
busy people and it is an indication of the importance they attached to the
work of the Inquiry that they were prepared to devote so much time to
assist me. Their names are set out in Annex 1. I thank each one of them for
the great help they have given me.
The Inquiry has again benefited from research carried out specifically to
inform its work on costs. Professor Hazel Genn of University College London
and Professor Richard Davies of the Centre for Applied Statistics at
Lancaster University have followed up Professor Genn's preliminary analysis
of costs in High Court litigation with a more detailed study based on a
sample of cases submitted to the Supreme Court Taxing Office during 1990
1995. Adrian Zuckerman, a Fellow of University College, Oxford, has, with
the help of one of my assessors, Senior Master Turner, conducted a survey
of German practitioners to elicit their views on the fixed costs system in
Germany. I am grateful to all of them, and to Chief Taxing Master Hurst for
facilitating the work in the Supreme Court Taxing Office.
Before the publication of the interim report I had visited France, the USA
and Canada. During the second stage of the Inquiry I have made a further
visit to the USA, Canada, Australia and Hong Kong. I am very grateful to
all those who were involved in organising my intensive programme.
I have also recently had the opportunity of discussing my approach with
specialists in civil procedure from many countries around the world at a
conference in Florence organised by the University of New York.
Once again, I would like to thank the five assessors who have continued to
assist me: Senior Master Turner, District Judge Greenslade, Rupert Jackson
QC, John Bolton and Phillip Sycamore; also Professor Ross Cranston, my
academic consultant, and Dr Richard Susskind, my consultant on information
technology. I am particularly grateful to James Rennie, the craftsman of
the new rules. I offer my congratulations to Master Turner on his recent
appointment as Senior Master, and to District Judge Greenslade on becoming
President of the Association of District Judges. In addition, I am deeply
indebted to the joint secretaries to the Inquiry, Amanda Finlay and Michael
Kron, and their team, for their invaluable support and commitment to the
Inquiry.
The names of the Inquiry Team and working groups are set out in Annex 1 to
this report, Annex 2 provides a list of those who have contributed to the
second stage of the Inquiry, whether by written submissions or by
organising meetings and visits. The list is intended to be complete, and I
apologise for any omissions. I am extremely grateful to everyone who has
contributed. The result, in my view, is a programme for change which could
radically improve access to civil justice. If it does not, then I accept
responsibility. If it does achieve the objective, then this is due to the
immense amount of help which I have received from the assessors, the team
and the working groups. Without their help I could not have produced this
report and the new rules. They are the product of a collective effort.
Section I
Overview The Principles
1. In my interim report I identified a number of principles which the
civil justice system should meet in order to ensure access to justice. The
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.
The problems
2. The defects I identified in our present system were that it is too
expensive in that the costs often exceed the value of the claim; too slow
in bringing cases to a conclusion and too unequal: there is a lack of
equality between the powerful, wealthy litigant and the under resourced
litigant. It is too uncertain: the difficulty of forecasting what
litigation will cost and how long it will last induces the fear of the
unknown; and it is incomprehensible to many litigants. Above all it is too
fragmented in the way it is organised since there is no one with clear
overall responsibility for the administration of civil justice; and too
adversarial as cases are run by the parties, not by the courts and the
rules of court, all too often, are ignored by the parties and not enforced
by the court.
The basic reforms
3. The interim report set out a blueprint for reform based on a system
where the courts with the assistance of litigants would be responsible for
the management of cases. I recommended that the courts should have the
final responsibility for determining what procedures were suitable for each
case; setting realistic timetables; and ensuring that the procedures and
timetables were complied with. Defended cases would be allocated to one of
three tracks:
(a) an expanded small claims jurisdiction with a financial limit of £3,000; (b) a new fast track for straightforward cases up to £10,000, with strictly
limited procedures, fixed timetables (20 30 weeks to trial) and fixed
costs; and
(c) a new multi track for cases above £10,000, providing individual hands
on management by judicial teams for the heaviest cases, and standard or
tailor made directions where these are appropriate.
The second stage of the Inquiry
4. My general analysis of the problems in the present system, and the
broad agenda for reform which I proposed in the interim report, have
provided the foundation for the more detailed work I have carried out in
the second stage of the Inquiry. This has concentrated on particular areas
of litigation where, in my view, the civil justice system is failing most
conspicuously to meet needs of litigants. These areas are medical
negligence, housing and multi party litigation. I have also developed more
detailed proposals on procedure and costs for the new fast track. Another
focus of special atten