Blackman, Lani --- "Improving litigation practice: a consideration of Lord Woolf s Rules " [1999] ALRCRefJl 14; (1999) 74 Australian Law Reform Commission Reform Journal 61

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Reform Issue 74 Autumn 1999

This article appeared on pages 61 - 64 of the original journal.

Improving Litigation Practice: A Consideration of ‘Lord Woolf’s Rules’

By Lani Blackman*

Over the past 10 years, Australia, England, Canada and the United States have undertaken major reviews of their civil justice systems. The reviews have had a common goal to reduce legal costs and delays, while ensuring disputants receive a fair and just resolution of their disputes.

In England and Wales, a number of the recommendations arising from Lord Woolf’s 1996 Access to Justice report are being implemented. These reforms will have a significant effect on their system. The Australian Law Reform Commission is considering the Woolf reforms as a part of its review of the federal civil litigation and dispute resolution system.

The Woolf Report found that legal fees expended to litigate cases often exceeded the value of property which the parties were disputing. Lord Woolf attributed this ‘lack of proportionality’ between legal costs and legal claims to the ‘uncontrolled nature of the litigation process’, and considered that there was a need for a fundamental shift in responsibility for the management of civil litigation from litigants and their legal advisers to the courts. To achieve this shift, Lord Woolf recommended a greater emphasis on judicial case management. This shift towards judicial supervision was combined with procedural reforms such as:

• case streaming with smaller claims assigned to a fast track, with fixed costs option;

• simplification of procedures;

• greater disclosure by lawyers to clients concerning their costs; and

• greater obligations on courts to provide litigation information and assistance.

To support judges in their management of litigation, Lord Woolf suggested new Rules of Civil Procedure. The first such rule set down the overriding objective of case management, namely enabling the court to deal with cases justly. The Rules specifically require parties and their legal advisers to assist the court to deal with cases justly. Dealing justly with a case includes:

(a) ensuring, so far as is practicable, that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate -
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the parties’ financial position;
(d) ensuring that it is dealt with expeditiously; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.¹

The extent of judicial discretion

There have been a number of criticisms of Lord Woolf’s reforms. One critic views the reforms as permitting “ad hoc exercises of subjective, antagonistic and potentially prejudicial judicial discretion to meet the perceived exigencies of individual cases.”² Certainly, each of the elements set out in draft Rule 1.1 invokes a largely unguided discretion of such scope as to make the judge’s role an intrepid one. For example, while judges can ensure that both parties comply with court rules and procedures, it can be difficult for a judge to seek to ensure, so far as is practical, that the parties are on an equal footing.

Other features in draft Rule 1.1 require consideration of the importance of the case, the complexity of the issues, and the parties’ financial position. The criteria raise as many questions as they answer - is it the importance of the case to society, to the parties, or to the development of the common law that is the determining factor, and how are judges to decide such matters? How do judges, who are neutral umpires of the parties’ dispute, obtain information as to the parties’ financial positions?

One of the cornerstones of our legal system is the neutrality of the judge. There are many sporting analogies which emphasise that the judge oversees fair play, but does not descend into the arena as a player. The trend to judicial management is seen to threaten the ‘fair play’ notions implicit in our system. Sir Anthony Mason has said:

“A judge must remain a judge, despite the temptation in the world of case management to call him a manager. It is vital to build up and maintain public confidence in the court system. Accordingly, there is a risk that, if we put too much emphasis on speedy disposition of cases, we shall prejudice the just disposition of cases. That is just what we cannot afford to do.”³

The role of lawyers

In the Woolf Report, much of the blame for ‘adversarial excesses’ in the system was laid at the feet of lawyers and their clients. Lord Woolf saw judicial control as the solution to inhibit the worst of ‘excessively adversarial’ conduct by parties and their legal advisers.

Criticism has been levelled at the profession for conducting matters in a fashion that leaves ‘no stone unturned’ which can contribute to the private and public costs of litigation. Geoffrey Gibson describes such as a ‘loss of nerve’ deriving from a combination of business pressures, fear of negligence suits and lower levels of experience throughout the profession.

“The loss of nerve is made worse by the fear of failure, either through being successfully sued, or even colourably sued, for professional negligence, or being overturned on appeal, or just making a fool of yourself. It runs from the litigant through to the top of the courts. The litigant wants a level of assurance that cannot be got. The temptation is there to throw lawyers and money at a problem. The solicitor worries about leaving something out. When it comes to discovery, it may be safer to put everything in ... It is better to be safe than sorry. Similarly, with counsel, it would be safer to read everything in sight; you cannot afford to leave it to the solicitors. When the inexperienced barrister comes to cross-examine, the lack of experience often means there is a lack of judgment or nerve about where to start or where to stop. This lack of judgment is a major reason for the excessive time taken for both criminal and civil trials.”⁴

Case management can be effective in limiting overservicing, tactical play and litigation excesses. To be effective, case management requires the cooperation of lawyers and litigants. Lord Woolf’s draft Rules of Civil Procedure include an obligation that parties and their legal advisers assist the court to deal with cases justly. However, merely imposing an obligation on parties and lawyers will not effect change in litigation culture, particularly if the obligation is set in general terms attached to wide judicial discretion as to its interpretation. Further consideration needs to be given to the framing and enforcement of the obligation.

An alternative court rule

In its present formulation, Lord Woolf’s rule for litigation practice is not easily implemented by a judge. There is no doubt the litigation system would work better if lawyers and litigants dealt justly with cases such that they worked cooperatively, undertook work proportionate to the claims, and engaged with each other from points of relative parity. But how can such engagement be mandated and how does it sit with the lawyer’s obligation to be a partisan advocate for the client?

“...The lawyer aims at ... [w]inning in the fight, not at aiding the court to discover the facts. He does not want the trial court to reach a sound educated guess, if it is likely to be contrary to his client’s interests.”⁵

Rule 11 of the United States Federal Rules of Civil Procedure provides one example of how sensible pre-trial litigation behaviour and advice can be incorporated within a court rule. Rule 11 requires a pleading, written motion or other paper to be signed by at least one attorney, or by the party if unrepresented. The rule then includes particular requirements relating to representations being made to the court.

“By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, -
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or increase in the cost of litigation;
(2) the claims, defences, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.”

The rule provides the court with positive authority to impose sanctions against attorneys, law firms, or parties who have violated the rule.

Proportionality principles

It may be that an obligation on practitioners to approach cases in a ‘proportional’ manner may be more appropriate as a professional practice rule than as a rule of court. Certainly any exposition of such an obligation in legal practice standards would require a narrower duty than that invoked by Lord Woolf.

A number of professional practice rules in Australian jurisdictions include such obligations as a duty to avoid unnecessary expense and waste of the court’s time; a duty to inform the court of the possibility of settlement; and requiring a practitioner to exercise independent forensic judgment, after consideration of the client’s desires.

The American Bar Association (ABA) Model Rules of Professional Conduct include clearer positive duties to the administration of justice than the Australian rules.

Rule 3.1. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
Comment. The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure ... The action is frivolous ... if the client desires to have the action taken primarily for the purposes of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of the existing law.
Rule 3.2. A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Comment. Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party’s attempt to obtain the rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of the action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

The practicality and relevance of the rules is enhanced through the commentary attached to each rule, a device which is used in the US, Canada and New Zealand, but has not yet been developed in Australian versions of professional practice rules.

Such guidance through professional practice rules could be made in conjunction with, or independently of, increased obligations in court rules. While professional practice rules are binding on practitioners, court rules impose obligations on practitioners and parties. If a practitioner or party does not comply with court rules, costs orders can be made against parties or the lawyers, or the court can impose preclusionary sanctions, such that defaulting parties may be prevented from using particular evidence, or calling a particular witness in their case.

Meeting the challenge

Lord Woolf’s rules set down best practice principles for a fair, just and cost effective litigation system. The principle is laudable. However, to effect a change in litigation practice, the principle must be followed by judges, lawyers and litigants. On its face this appears to be the difficulty with Lord Woolf’s rules. The challenge for the Commission is finding a way to resolve the dilemma.

* Lani Blackman is the Legal Policy Officer with the Australian Law Reform Commission. She is also working on the Commission’s reference into the federal civil litigation system.

Endnotes

1. Draft Civil Proceedings Rules r 1.1(3).

2. N Andrews ‘The Adversarial Principle: Fairness and Efficiency’ in A Zuckerman and R Cranston (eds) Reform of Civil Procedure: Essays on ‘Access to Justice’ Clarendon Press Oxford 1995, at 182.

3. A Mason ‘The Courts as Community Institutions’ (1998) 9 Public Law Review 83, at 85.

4. G Gibson ‘The Cancer in Litigation’ (1998) 104 Victorian Bar News 24, at 26.

5. J Frank Courts on Trial Princeton UP 1950, 85.