Cry, Woolf

This entry was posted on Tuesday, May 25th, 2010 at 7:33 pm

11 years ago Lord Woolf’s civil procedure rules came into force. ‘What would he make of the new pre-action protocol for low value road traffic accidents?’ asks Stephen Higham, solicitor.

We needed him more than he needed us. In 1994 Lord Woolf took on the unenviable task of consolidating the civil court rules. They were governed by two separate codes, the Rules of the Supreme Court and the County Court Rules. Practitioners like me were expected to be familiar with both sets of rules, which frequently overlapped. Court appearances involved juggling volumes of heavy books, cross-referencing and arguing with opponents and judges about footnotes found here and there. It was a mess.

Lord Woolf’s 1996 Access to Justice Report changed all that as it paved the way for the Civil Procedure Rules. At last lawyers could use a unified code, which largely replaced the old rules. The first and most important rule is worth quoting in full:

The overriding objective:

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring 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 financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; 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.

The overriding objective was to be applied in all cases when interpreting the rules. Being ‘just’ became the mantra for claimant and defendant lawyers and judges.

One way Lord Woolf sought to implement the overriding objective was by introducing pre-action protocols. These were intended to encourage the parties to exchange information and attempt to settle claims before issuing proceedings, and litigate them efficiently at court if agreement could not be reached. The personal injury claims protocol was particularly effective but insurance companies were upset at what they incorrectly perceived as the growth in litigation and consequential increase in legal costs.

To appease the insurance lobby, in 2003 the government changed the personal injury pre-action protocol so that injured people in road traffic accidents whose claims settled for between £1000-£10,000 would now be paid fixed legal costs. This had the effect of reducing the amount of costs paid in these cases, which made up the bulk of personal injury claims, but still the insurers wanted more.

On 30th April 2010 the insurers got their way when the ‘pre-action protocol for low value personal injury claims in road traffic accidents’ was introduced. The new scheme forces claimants and insurers in appropriate cases to communicate via a secure website. In return for the promise of quicker settlements it allows for even less fixed costs to be paid to successful claimants.

However, to complicate matters, if the case leaves the new protocol it goes into the 2003 pre-action protocol. If settlement cannot be reached at that stage proceedings must be issued. The case is then governed by the 1999 Civil Procedure Rules, which are now on their 52nd update.

For insurers, the new protocol is another victory in their battle to reduce payouts, but what about the overriding objective? How can cases be dealt with justly when claimant solicitors are told not to do any work regarding liability during the initial investigation stage, and are paid less accordingly? What if this results in vital evidence being lost which may have convinced the defendant to admit liability? How are the parties on an equal footing when there is an insurer with (seemingly) unlimited resources on one side versus the claimant (and their solicitor) on a tight budget on the other? How is the case to be dealt with ‘expeditiously and fairly’ when the parties are so far apart in terms of the resources and time they can allocate?

It is still too early to tell what the impact of the new pre-action protocol will be. Nearly two weeks after its introduction many solicitors and insurers are unable to use the website ‘portal’ due to administrative delays. Claimant solicitors are considering whether they can manage the reduced fixed costs and still provide a quality service to the accident victim. Some insurers have indicated that they will not participate in the new scheme as they are unable to process claims quickly enough. Both sides are trying to come to terms with the increased complexity caused by yet another protocol and amendment to the Civil Procedure Rules. One thing is clear: Lord Woolf’s original vision of clarity and fairness has been lost. As the American baseball player Yogi Berra famously said, “it’s like déjà vu all over again”.

Stephen Higham is a Personal Injury Solicitor at David Phillips & Partners and writes for the legal blog, De Facto.