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(e)
In a study
conducted by Goriely, Moorhead and Abrams to assess the impact
of the reforms on parties' pre-action behaviour in relation to personal injury,
clinical negligence and housing claims, the authors described costs as posing an
intractable problem, commenting as follows :-
"Reducing costs was a major objective of the reform process. Although the evidence on this
issue is far from conclusive, initial indications do not suggest that case costs have decreased.
Each potential saving in the reform is offset by other changes that require more work, or
bring forward work to an early stage, so that it is required in a greater proportion of cases."
Their findings also suggested that in the areas studied, costs had not become
less disproportionate.
"....… both costs and damages had increased. This meant that, when expressed as a
proportion of damages, costs had remained constant. In both the pre- and post-Woolf
samples, the cost of small cases amounted to 68% of damages."
(f)
While 92% of the respondents to the 5th Woolf Network survey of December
2002 considered that the reforms were working well overall, this was subject to
important qualifications. The Executive Summary reported that the areas where
concerns were expressed involved "the costs rules and problems with
conditional fees, frontloading of costs, poor court performance, judicial
inconsistency and insufficient enforcement of protocols".
(g)
When addressing the 5th Worldwide Common Law Judiciary Conference in
Sydney on 10 April 2003, Lord Woolf CJ acknowledged that the CPR "have not
yet tackled the problem of costs".
Turning to the issue of complexity, the hope that the new code would provide a
simple, user-friendly system of civil procedure appears not to have been fulfilled. The
belief was that it might be possible in most cases to do away with references to
decided cases, relying instead on broadly formulated rules construed with the guidance
of the overriding objective and supplemented by practice directions and practice
guides expressed in helpful language.
Notes
Tamara Goriely, Richard Moorhead and Pamela Adams, More Civil Justice The Impact of the
Woolf Reforms on pre-action behaviour, Research Study 43 Summary, (The Law Society and the
Civil Justice Council).
In a wide-ranging speech on "Current Challenges in Judging", his Lordship stated: "The general
view of the new rules is that they have improved procedure but, for reasons that I have not time to
explain, they have not yet tackled the problem of costs."
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