Question 1

Introduction

In the changing realities and demands of the modern era for an effective system of civil justice, ‘if
“time and money are no object” was the right approach in the past, then it certainly is not today…’1.
Debated as “the greatest change the civil courts have seen in over a century”2 yet being
“Fundamentally flawed”3, this essay will assess the academic tension around the efficacy of reforms
that followed Lord Woolf’s report. This essay will discuss the central argument by addressing the
Limitations of CPR 1999 in Achieving Key Goals, Efficiency Impact of Post-Woolf Reforms, and
additional Critiques.

Limitations of CPR 1999 in Achieving Key Goals

In order to assess thoroughly whether the reforms that followed Lord Woolf’s report led to a more
efficient system of civil of Justice, it is necessary to examine in detail the Limitations of CPR 1999 in
Achieving Key Goals.

There were effective shortcomings and limitations to the CPR 1999 in achieving its goals.
For example, two studies contradict Lord Woolf's analysis. The KPMG Peat Marwick report (1994)4
identified solicitors' inexperience, inefficiency, and delays in obtaining expert reports as the main
causes of delay in civil cases. Furthermore, The Rand Corporation's study (1996)5 revealed that the
reforms had little effect on time disposition, costs, and attorney satisfaction. The complexity of CPR
1999 rules and challenges in implementation hindered their effectiveness. Procedural obstacles and
court administration problems, especially listing, impacted efficiency, highlighting limitations and
complexities in the reforms.6 Based on the above, it may seem that the reforms following Lord
Woolf’s report did not efficiently ascertain a better system of civil justice as these two reports will
have been crucial to avoid a mis-diagnosis prior to CPR 1999 implementation.

However, The CPR's ultimate goal is to transform litigation culture by promoting justice and cost-
effective case handling, with parties and legal representatives expected to assist judges in achieving
this objective.7 For example, Lord Woolf reform caused legal procedure modernization in
terminology changes: writ to claim form, discovery to disclosure, plaintiff to claimant, statement of
claim to particulars of claim, and payment into court procedures to Part 36 procedures for
settlement offers.8 Based on the above, this practically and effectively aimed to replace complex
legal language with plain English to ‘promote a fair and open approach’9, aligning with the overriding
objective of the new rules.

1
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 665.
2
David Kelly, Slapper and Kelly's The English Legal System (Oxford University Press, 2021), p. 255.
3
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 675.
4
KPMG Peat Marwick, Study on Causes of Delay in the High Court and County Courts (January 1994).
5
Institute of Civil Justice, Rand Corporation, Study on the Effect of Judicial Case Management (December
1996).
6
KPMG Peat Marwick, Study on Causes of Delay in the High Court and County Courts (January 1994).
7
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 665.
8
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 668-669 (Table
23.1).
9
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 668-669.
Nonetheless, a comparison between the pre-Woolf era and the period following the CPR
1999 can be examined. For example, as regards cost, the Woolf reforms aimed to address the
high and unpredictable cost of litigation, but the Civil Procedure Rules 1998 (CPR) have failed to
improve the situation. Litigation costs remain high, increasing, and unpredictable. Specifically, two
measures introduced by the CPR, namely the proportionality requirement for standard costs and the
obligation for cost estimates, have not had a significant impact.10 Based on the above, it may not be
correct to say that the reforms that followed Lord Woolf’s report led to a more efficient system of
civil justice because ‘litigation cost’, as a key incentive was not adequately addressed by the reforms.

Efficiency Impact of Post-Woolf Reforms

In order to assess thoroughly whether the reforms that followed Lord Woolf’s report led to a more
efficient system of civil of Justice, it is necessary to examine in detail Efficiency Impact of Post-Woolf
Reforms.

Following the impact of the post-Woolf reforms on enhancing the efficiency of the civil
justice system, the proactive approach has enabled the court actively manage litigation,
prioritizing the overriding objective of dealing with cases justly. Telephone hearings for preliminary
matters, such as allocation and case management, save time and costs with the use of modern
technology.11 This utilization of modern resources underscores the foresight of Woolf’s reforms in
leveraging technological advancements to enhance the effectiveness of civil Justice system. In
addition, corresponding with the key recommendations implemented from Lord Woolf's
report including Pre-action protocols, Alternative dispute resolution, Part 36, Case
management, and Disclosure, A Law Society study (2002) reported 84% of solicitors found Lord
Woolf's reforms to be quicker, with 70% considering them more efficient than the previous
procedures.12 Based on the above, such feedback from solicitors regarding the reform effectiveness,
in the civil justice system, adds to the empirical credibility of Woolf’s report.

In assessing the effectiveness of Post-Woolf reforms, one notable example is the introduction of Part
36 procedures. Part 36 offers within the CPR have proven highly effective in promoting settlement in
civil cases. Widely acknowledged by practitioners, they encourage parties to initiate settlement
without appearing weak. Consequently, Part 36 offers have become standard practice, streamlining
the process, improving case management, and providing a balanced framework for settlement
discussions.13 Part 36's narrow scope poses challenges for accommodating non-monetary relief and
offering relief beyond pleaded claims, causing uncertainty and complicating advice to clients. The
discretionary application of Part 36 by courts has eroded its effectiveness, making it difficult to
assess offer ramifications due to excessive discretion. These issues raise concerns about the future
of Part 36 offers, highlighting the need for an alternative system in light of the potential abolition of

10
AAS Zuckerman, ‘Costs Capping Orders—The Failure of the Third Measure for Controlling Litigation Costs’
(2007) 26 Civil Justice Q 271.
11
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 674
12
Law Society, The Woolf Network Questionnaire (2002).
13
Herbert Smith Freehills LLP, 'The Woolf Reforms 10 years on' (27 April 2009) accessed 4 June 2023, Lexology
https://www.lexology.com/library/detail.aspx?g=abec6430-2ef8-4e4c-b3da-9b7ce8d17a53.
the costs shifting rule.14 Based on the above, it may be correct to agree with the central argument
but not without considering Part 36 limitations.

Additional Critiques

In order to assess thoroughly whether the reforms that followed Lord Woolf’s report led to a more
efficient system of civil of Justice, it is necessary to examine in detail additional critiques.

There are more questioning counterarguments that seek to rectify the puzzle of post-Woolf
reforms in its quest for improving efficiency within the civil system of justice.
Judge Michael Cook's comment, “the new rules have become a lottery”15 and Zander’s indefinite
“scope” 16concerns about the post-Woolf reforms highlight potential issues of inconsistency and
destabilization in decision-making due to the broad discretion given to judges under the "overriding
objective." 17The broad judicial discretion introduced has eroded predictability, potentially escalating
litigation costs. Therefore, the post-Woolf reforms have significantly undermined predictability and
access to justice. 18 Moreover, the emphasis on efficiency risks compromising the pursuit of just
outcomes. Furthermore, highlighting the ongoing challenges in achieving a simpler and more
navigable system, the reality is far from it. Thompson comparatively points out in 2009, that since
1998 there has been a “550% increase” 19 in Civil Court Practice of which will be courtesy of the
compounding complex effect of Lord Woolf’s reform. Based on the above, it may not be correct to
say that the central argument is true because in Zanders own words “Woolf reforms would do more
harm than good”. 20

On critique of the bigger picture with emphasis on litigants in person21, the post-Woolf reforms have
had a mixed impact on the efficiency of the civil justice system. While they have addressed the
needs of litigants in person by increasing their representation, challenges persist. Litigants in person
struggle with procedural rules and emotional decision-making. The reforms have introduced
measures to support them, such as assistance from court staff, reviewing court forms, and
promoting volunteer support services.22 However, there are concerns regarding imbalances when
one party lacks legal representation, slower case proceedings, and less severe consequences for
procedural errors. 23 Based on the above, acknowledging the complexities emphasise the nuances
that may exist with the ongoing efforts to strike a balance between accessibility, efficiency and
fairness within the civil justice system Post-Woolf reforms.

14
Herbert Smith Freehills LLP, 'The Woolf Reforms 10 years on' (27 April 2009) accessed 4 June 2023, Lexology
https://www.lexology.com/library/detail.aspx?g=abec6430-2ef8-4e4c-b3da-9b7ce8d17a53.

15
Michael Zander QC, 'Zander on Woolf' ([2009]) volume (7360) NLJ 27.
16
Michael Zander QC, 'Zander on Woolf' ([2009]) volume (7360) NLJ 27.
17
Michael Zander QC, 'Zander on Woolf' ([2009]) volume (7360) NLJ 27.
18
Michael Zander QC, 'Zander on Woolf' ([2009]) volume (7360) NLJ 27.
19
Michael Zander QC, 'Zander on Woolf' ([2009]) volume (7360) NLJ 27.
20
Michael Zander QC, 'Zander on Woolf' ([2009]) volume (7360) NLJ 27.
21
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 677-679.

22
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 677-679.

23
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 677-679.
Conclusion

In conclusion, the assessment of post-Woolf reforms reveals a complex ‘landscape’24 in evaluating

the efficiency of the civil justice system. Despite challenges and critiques, Lord Woolf's proposals set
a new foundation for civil justice, prompting ongoing efforts to balance accessibility, efficiency, and
fairness. The reforms cannot be definitively labeled as leading to a more efficient system, but they
provide opportunities for refinement and advancement towards long-lasting developments in civil
justice.

24
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2020), p. 665
Question 2.

Introduction

Established by the Criminal Appeal Act 199525, The Criminal Case Review Commission (CCRC) has been
operational in response to prominent ‘justice in error’26 cases since 1997.27 Debatable comments like
‘The CCRC adeptly applies independent minds in pursuit of justice’28 and ‘The Commission utilizes
a case screening process and experiences a high attrition rate’29 have existed over the years. In
light of the above academic debates, this essay via a review of successful CCRC cases, Public
Confidence and Reassurance, Limitations and Criticisms, will agree to an extent that the CCRC has
been effective in its task of preventing miscarriages of justice.
Successful CCRC Cases

In order to assess thoroughly whether the CCRC has been effective in its task of preventing
miscarriages of justice, it is necessary to examine in detail successful CCRC cases.

One of such will be the Barry George case30. In this case, Barry George was convicted of Jill Dando's
1999 murder. Gunshot residue found in Barry George's coat pocket was questioned due to witnesses
alleging armed police presence during his arrest. Barry George's conviction was overturned by the
Court of Appeal following a referral by the Criminal Cases Review Commission. He was subsequently
acquitted at his retrial.31 However, pendency of this case was availed when “miscarriage of justice”
needed a court definition decision as a premise to award Mr George compensation under section 133
of the Criminal Justice Act 198832.33 Based on the above, it can be argued that the CCRC was effective
in its task of preventing miscarriages of justice because the commission critically demonstrated the
ability to identify flaws in the initial investigation and review process, leading to the wrongful
convictions.

However, pendency of cases suggesting a delay in resolving cases, uncertainty and inconsistency in
decision-making and resource allocation from the CCRC to address and resolve can challenge the CCRC
overall effectiveness from other cases. Nonetheless, the CCRC’s re-examination of the evidence and
consistent consideration of the allegations showcases its commitment to thorough investigation and
uncovering of potential miscarriages of justice. For example, The CCRC's early referral involved Derek

25
Criminal Appeal Act 1995.
26
Michael Naughton, "Redefining Miscarriages Of Justice: A Revived Human-Rights Approach to Unearth
Subjugated Discourses of Wrongful Criminal Conviction" (2005) 45(2) The British Journal of Criminology 165,
182, https://doi.org/10.1093/bjc/azh066.
27
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2021) 648.
28
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2021) 650.
29
Carolyn Hoyle and Mai Sato, 'A Commission under Scrutiny', in Reasons to Doubt: Wrongful Convictions and
the Criminal Cases Review Commission (Oxford, 2019; online edn, Oxford Academic, 21 Mar. 2019),
https://doi.org/10.1093/oso/9780198794578.003.0002 (accessed 6 June 2023).
30
R v George (Barry) [2007] EWCA Crim 2722
31
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2021) 650.
32
Criminal Justice Act 1988 section 133
33
R (on the application of Adams) (FC) (Appellant) v Secretary of State for Justice (Respondent), In the Matter
of an Application by Eamonn MacDermott for Judicial Review (Northern Ireland), In the Matter of an
Application by Raymond Pius McCartney for Judicial Review (Northern Ireland) [2011] UKSC 18, [2009] EWCA
Civ 1291; [2010] NICA 3, [PDF] (accessed [07/06/2023])
Bentley34, convicted as an accomplice in a police officer's murder. Despite unsuccessful appeals and
Bentley's execution in 1953, his family campaigned for justice. In 1998, the CCRC referred the case to
the Court of Appeal, which overturned the conviction due to an unfair trial caused by a flawed
summing-up.35 Based on the above, this case exemplifies the CCRC's success in rectifying wrongful
convictions thereby reaffirming its purpose in the pursuit of justice whilst maintaining public
confidence and reassurance.

Public Confidence and Reassurance

In order to assess thoroughly whether whether the CCRC has been effective in its task of preventing
miscarriages of justice, it is necessary to examine in detail public confidence and reassurance.

The existence of the CCRC provides a mechanism for individuals who believe they have been wrongly
convicted. As the CCRC maintains complete independence, operating impartially in investigating
alleged miscarriages of justice. It is not affiliated with the courts, police, prosecution, or the applicants
themselves.36 Based on the above, it may seem that the CCRC is effective in its task because its
independence can reassure the public that their cases will be reviewed objectively and without bias.
However, though ‘the CCRC is doing exactly what one would expect to adapt to the future … rigorously
applying independent minds in pursuit of justice’37, the need for a separate commission to address
miscarriages of justice, implies system errors, casting doubt on initial draconian verdicts and suggest
an indisputable unfairness that the CCRC has to constantly battle with on its platform.

Nonetheless, the CCRC’s role as an independent body gives the public a sense of accountability and a
reassurance that wrongful convictions will be addressed. For example, The Court of Appeal praised
the new authority as a "necessary and welcome"38 body that played a crucial role in uncovering the
injustice.39 Based on the above, it may be correct to say that the CCRC has been effective in its task of
preventing miscarriages of justice by proving its worth at its inception but it poses to be equally
threatened by limitations and critisims of the criminal justice system.

Limitations and Criticisms

In order to assess thoroughly whether the CCRC has been effective in its task of preventing
miscarriages of justice, it is necessary to examine in detail Limitations and criticisms.

The ‘real probability test’, may be a criticism of substantial prevention to the CCRC in addressing
miscarriages of Justice. For example, according to Naughton, The 'real possibility test' may result in
the factually innocent being unable to have their convictions referred to the Court, while the

34
R. v. Derek Bentley (Deceased) [1998] EWCA Crim 2516
35
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2021) 648.
36
Jacqueline S. Hodgson, 'Mixing Inquisitorial Functions within an Adversarial Process: The Criminal Cases
Review Commission', in The Metamorphosis of Criminal Justice: A Comparative Account (New York, 2020;
online edn, Oxford Academic, 23 Apr. 2020), https://doi.org/10.1093/oso/9780199981427.003.0009 (accessed
6 June 2023).
37
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2021) 650.
38
The Guardian, 25 Feb. 1998, 'Seaman wrongly Hanged in 1952' (Duncan Campbell)
39
Richard Nobles and David Schiff, 'Scientific evidence and investigation by the new Criminal Cases Review
Commission: the scope for further miscarriages of justice and crisis', in Understanding Miscarriages of Justice:
Law, the Media and the Inevitability of a Crisis, Oxford Monographs on Criminal Law and Justice (Oxford, 2000;
online edn, Oxford Academic, 22 Mar. 2012), https://doi.org/10.1093/acprof:oso/9780198298939.003.0005
(accessed 6 June 2023).
Commission refers and overturns convictions of the factually guilty if they meet the test. 40 Based on
the above, the potential bias in favor of the factually guilty, resulting from the disproportionate impact
of the "real possibility test," jeopardizes justice by perpetuating wrongful convictions and denying
justice to the truly innocent. This bias may lead to a neglect of cases where new evidence could
exonerate wrongly convicted individuals, undermining the principle of justice and eroding public
confidence in the CCRC and the wider criminal justice system. Furthermore, this bias can create an
imbalanced perception of the CCRC's effectiveness, hindering comprehensive efforts to address
wrongful convictions and further undermining public trust.

There are limitations that potentially prevent the CCRC from addressing miscarriages of Justice. For
example, Former CCRC chair Richard Foster stated in a 2016 interview that the commission's budget
had been cut by a third in real terms over a decade, while their workload increased by 70%. The CCRC
saw a surge in applications, influenced by a more accessible form for prisoners with literacy issues. As
a result, the commission faced a significant budget reduction compared to a decade ago. Foster also
emphasized in his 2018 farewell speech that disclosure failings were the leading cause of miscarriages
of justice.41 Based on the above, it is unlikely that the CCRC will overall be hampered in its ability to
address miscarriages of justice effectively because of budget cuts, increased workloads, volume of
applications, language accessibility, and disclosure failings.

Conclusion

In conclusion, the CCRC's effectiveness in preventing miscarriages of justice is nuanced. Successful

cases like Barry George and Derek Bentley showcase the commission's commitment to rectifying
wrongful convictions. However, limitations such as the real probability test and budget constraints
pose challenges. The real probability test may exhibit bias towards the factually guilty, potentially
undermining justice for the innocent. Budget cuts strain the CCRC's resources, potentially hindering
its ability to address cases thoroughly. Nevertheless, the CCRC's role as an independent body instils
public confidence. Continuous improvement efforts should address these limitations and criticisms,
ensuring equitable standards of justice and allocating sufficient resources. By doing so, the CCRC can
strengthen its crucial role in safeguarding the integrity of the criminal justice system.

40
Carolyn Hoyle and Mai Sato, 'A Commission under Scrutiny' in Reasons to Doubt: Wrongful Convictions and
the Criminal Cases Review Commission (Oxford, 2019) https://doi.org/10.1093/oso/9780198794578.003.0002
accessed 7 June 2023.
41
Emily Allbon and Sanmeet Kaur-Dua, English Legal System (Oxford University Press, 2021) 648.
 Bibliography

Book:

Allbon, E. and Kaur-Dua, S. (2021). English Legal System. Oxford University Press.

Kelly, D. (2021). Slapper and Kelly's The English Legal System. Oxford University Press.

PDF:

Hoyle, C. and Sato, M. (2019). A Commission under Scrutiny. In Reasons to Doubt: Wrongful
Convictions and the Criminal Cases Review Commission. Oxford Academic. [Online]
Available at: https://doi.org/10.1093/oso/9780198794578.003.0002 (Accessed 6 June 2023).

Hodgson, J.S. (2020). Mixing Inquisitorial Functions within an Adversarial Process: The
Criminal Cases Review Commission. In The Metamorphosis of Criminal Justice: A
Comparative Account. Oxford Academic. [Online] Available at:
https://doi.org/10.1093/oso/9780199981427.003.0009 (Accessed 6 June 2023).

Nobles, R. and Schiff, D. (2000). Scientific evidence and investigation by the new Criminal
Cases Review Commission: the scope for further miscarriages of justice and crisis. In
Understanding Miscarriages of Justice: Law, the Media and the Inevitability of a Crisis. Oxford
Monographs on Criminal Law and Justice. Oxford Academic. [Online] Available at:
https://doi.org/10.1093/acprof:oso/9780198298939.003.0005 (Accessed 6 June 2023).

Naughton, M. (2005). Redefining Miscarriages Of Justice: A Revived Human-Rights

Approach to Unearth Subjugated Discourses of Wrongful Criminal Conviction. The British
Journal of Criminology, 45(2), pp.165–182. https://doi.org/10.1093/bjc/azh066.

Statute:

Criminal Appeal Act 1995.

Case:

R v George (Barry) [2007] EWCA Crim 2722.

R v. Derek Bentley (Deceased) [1998] EWCA Crim 2516.

Newspaper:

Campbell, D. (1998). "Seaman wrongly Hanged in 1952". The Guardian, 25 Feb.

Reports:

KPMG Peat Marwick. (1994). Study on Causes of Delay in the High Court and County Courts.

Institute of Civil Justice, Rand Corporation. (1996). Study on the Effect of Judicial Case
Management.
Law Society. (2002). The Woolf Network Questionnaire.

Zuckerman, A.A.S. (2007). Costs Capping Orders—The Failure of the Third Measure for
Controlling Litigation Costs. Civil Justice Quarterly, 26, pp.271.

Herbert Smith Freehills LLP - Anna Pertoldi, Ciara McDonald, Sonya Leydecker and Tim
Parkes. (2009). "The Woolf Reforms 10 years on". Lexology. [Online] Available at:
https://www.lexology.com/library/detail.aspx?g=abec6430-2ef8-4e4c-b3da-9b7ce8d17a53
(Accessed 4 June 2023).

Zander QC, M. (2009). "Zander on Woolf". NLJ, (7360), p.27.