‘The Woolf reforms have joined the long list of failed attempts to reform the

civil justice system.’ Discuss.

Through criticism voiced by actors within the civil justice system, namely
lawyers, judiciary, and litigants - it was apparent to many that effective and
accessible civil justice was being compensated by an overabundance of
adversarial tendencies. The civil justice system had become so unreliable
and costly for the average citizen that it was in a state of crisis.

Based on these reasons, Lord Woolf introduced his extensive answer to the
failing system in a report entitled Access to Justice. Lord Woolf analyzed the
civil justice system, concluding that the main problems were cost, delay,
complexity, and uncertainty of outcome.1 As a result, Woolf proposed
reforms that would attempt to alleviate such problems and in due course
change the face and culture of litigation from adversarial to inquisitive.
However, Woolf’s main objective of creating a balanced civil system in
which cases are dealt with justly and cost-effectively has proven more
difficult to achieve.

Through implementation of Woolf’s proposed timetables and a more rigid

system less hospitable to a high volume of diverse cases, faster civil justice
has come at an extremely high price. Therefore, complex problems such as
front-loading, increased cost, and hurried cases, have shown that Woolf’s
reforms have not reached their intended goals displaying an inadequate
reform system.
1
Kate Malleson, “The Legal System” pp103

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The problem of front-loading has been greatly realised by many critics as a
major drawback of the Woolf reforms. Front-loading has come as a result of
“faster” civil justice since settling is a central objective of the reforms.2 Lord
Woolf’s reforms pushed for more cases to settle so that the trial process
would not have to be exhausted, and instead all other resources may initially
be used. While in writing this appears to be a logical solution, in practice
unforeseen costs and wasted effort spent in preparation is proves otherwise.
With more emphasis on the desire for cases to settle, more work goes
towards the earlier management and frontloading of costs occur.3

Professor Michael Zander, author of Cases and Materials on the English

Legal System, has made substantial criticisms of the Woolf Reforms and
clearly identifies the problem of frontloading. Zander explains, “…one of the
effects of the protocols has been front-loading of costs not only for cases that
are ultimately contested but equally for those that settle – including cases that
would previously have settled at lower cost.”4

As one can see, front-loading is a major problem resulting from the reforms
because it attempts to shift volumes of cases to settle but does not reduce cost
and threatens fair justice. Woolf attempted to create less traffic by having
less cases go to trial but this ultimately crowded the early management of
cases and increased costs by having lawyers do more work.

2
Michael Zander, “Cases and Materials on the English Legal System” pp60
3
Zander, pp63
4
Zander, pp63

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Kate Malleson, author of The Legal System explains this disadvantage to
justice when she states, “The new system imposes a regime which benefits
the very small proportion of cases which come to court at a cost to the vast
majority which settle.” The objective of speedy civil justice by having more
cases settle seems to move the problem of cost instead of balancing out the
system. Therefore, front-loading proves that Woolf’s initial objective of
creating a cost-effective system is obstructed by the higher costs being
incurred by participants due to settlement demands.

Yet another problem apparent under the reforms is hurried cases due to rigid
timetables proposed by Lord Woolf. Lord Woolf implemented stricter
timetables by which different stages of the litigation should be completed and
imposed by the court. Fast track cases (5,000-15,000), for example, must
have a trial date set within 30 weeks and a hearing that is normally expected
to be completed within one day. Moreover, there are fixed times for serving
a defence and disclosing evidence and failure to comply with the judge’s
demand could result in cost penalties.5 A questionable result of strict
timetabling has been the effect of such schedules on quality of justice. For
example, after viewing “Fast Track Case Study: The Trial” conducted by JSB
Training Videos, timetabling seems to create a goal that at times may
obstruct the more important goal of justice.6

Under the reforms, judges have the right to limit defence arguments and take
control of the courtroom so that a certain timetable may be met. Though
timetabling is an attempt to create efficiency within the system, at times it

5
Malleson, pp107
6
JSB Training Videos #4, Fast Track Case Study: The Trial

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seems to over-rule the trial at hand so much so that cases are brought in and
out of trial as quickly as possible. This limit of litigation may be damaging
to cases that need more litigation at a slower pace but cannot afford to incur
embellished costs.7

Moreover, the enforcement of timetabling can vary from judge to judge,

causing inconsistency and unfair practices within the courtroom also
threatening equal justice to all.8 If Woolf’s main initiative was to create a
system in which cases are dealt with justly, procedures such as timetabling
seem to be rigid and disregarding of the different needs of different cases.9
In addition, tight deadlines may very well create inefficiency by forcing cases
to go to trial due to lack of time in which to resolve them by agreement10.
Overall timetables seem to impose strict schedules that not only may threaten
quality of justice but might also cause inconsistency and even delay at times.

In order to fully analyze the success or failure of the reforms the benefits and
disadvantages must be considered. While the Woolf reforms have caused
increased costs, delays, and at times arguable decreased quality of justice due
to timetables - they have also produced positive results based on a more
inquisitorial approach. The new system has prompted for a less adversarial
approach, which has gotten more cases through the system while avoiding
old distractions such as “hired-gun” experts and delay from lawyers.11 The
reforms have given the civil justice system much needed structure, forcing
the culture of litigation to shift from a complex adversarial system to a
7
Malleson, pp115
8
Michael Zander, “The high price of the Woolf reforms” The Times, London. 30 April 2002
9
Malleson, pp112
10
Malleson, pp112
11
Malleson, pp114

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regimented inquisitorial one. Michael Zander, one of the reforms most
notorious critics suggests, “The culture of civil litigation may have changed
for the better but costs and delays are still bad.”12 Therefore, the reforms have
produced a positive effect on cultural shift, however because they have not
meet central goals of reducing costs and providing equal justice to cases, in
implementation they have failed.

In studying the effects of the Woolf reforms, all enforced changes are
relative to new circumstances. Cases have gone through the system in a
speedier fashion but has quality of justice been compensated as a result?
Moreover, is the “speedier justice” a result of the rules or is it merely due to
lawyers conducting more negotiations before proceedings are issued to avoid
increased cost?13 Because the Woolf reforms prompted such an abrupt
change of the system at the root, many of these questions seem plausible. It
seems that the reforms, for the most part, created a shift in problems rather
than an anecdote for them. For example, the overall time to resolve a
dispute may be the same as prior to the reforms, but because the court stage
of the process is further down the line and sparingly used it may seem
otherwise.14 Furthermore, in light of increased costs the reforms have
clearly made the system more expensive, which was not Woolf’s intended
goal. A more costly system is unfortunately a less accessible one for the
masses and with cost being an important motivating factor for participating
in litigation; expensive civil justice may threaten its use. The overriding
objective of the Woolf reforms, outlined in Access to Justice, was to “enable
the court to deal justly with cases…ensuring that the parties are on an equal
12
Zander, The Times
13
Malleson, pp114
14
Malleson, pp115

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footing, and saving expense.”15 The reforms, however, have not meet these
goals due to increased cost and threat to justice based on a “speedy”
mentality that limits litigation, ultimately confirming that the Woolf reforms
have presumably failed in theory and practice.

Bibliography
JSB Training Videos #4, Fast Track Case Study: The Trial
Malleson, Kate. “The Legal System” Lexis Nexis, UK 2003.
Slapper, Gary & David Kelly. “English Law” Cavendish Publishing
Limited, London 2000.
Zander, Michael. “Cases and Materials on the English Legal System” Lexis
Nexis, UK 2003.
Zander, Michael. “The high price of the Woolf reforms” The Times,
London. 30 April 2002

15
Gary Slapper and David Kelly, “English Law” pp624

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