CJR Interim Report, Section I. The Woolf Reforms As A Useful Framework

I. THE WOOLF REFORMS AS A USEFUL FRAMEWORK

217.	We are fortunate in Hong Kong to have access to the work on civil justice system reform done in a number of jurisdictions. The reforms that have attracted much discussion in many countries are the reforms proposed by Lord Woolf which have, to a large extent, been implemented in the CPR. Those reforms are of particular relevance to Hong Kong for the following reasons :-

	*	They are based on two detailed reports drawing together current strands of thought and with the benefit of extensive consultation in England and Wales.

	*	Those reports have sought to tackle the problems on a wide front and led to a total of 303 recommendations for fundamental and far-reaching changes to the civil justice system.

	*	The adopted recommendations have been translated into a comprehensive set of procedural rules (the CPR) with accompanying practice directions, specialist court user guidance notes and, presently with five pre-action protocols issued. One therefore has the advantage of specific rules, directions and protocols providing focal points for discussion.

	*	The Rules of the Supreme Court replaced by the CPR are in many respects identical to the HCR presently in use in Hong Kong.

	*	The bulk of the CPR came into operation on 26 April 1999 and so allow an assessment of their operation over the last two years.

218.	The Woolf reforms themselves drew on much work on civil justice systems that had preceded them. However, in the current era, they are pre-eminent in the field. Other reforms being discussed, and in some cases, already implemented have drawn heavily on Woolf concepts and rules expressed as part of the CPR. It therefore follows that any consideration of possible reform options for Hong Kong can usefully commence by examining the range of changes resulting from the Woolf reforms, a process likely to encompass most other reform initiatives, and then supplementing those changes by reference to ideas or rules from other jurisdictions.

219.	At the outset, much of the criticism directed at the Woolf reforms were of a transitional nature. Many complained that too little time had been allowed for the transition and that numerous changes in the first few months had made it hard to keep up with them or even to ascertain what the latest position regarding the CPR or the associated practice directions was.

220.	However, after that initial period and over the first two years of their operation, the CPR have generally been favourably received in England and Wales. Referring to various surveys on the CPR, the Lord Chancellor's Department points out that :-

	*	The Law Society sent a questionnaire to members of its Woolf Network. Respondents believed that the rules were working quite well when the responses were published in September 1999. ^{(Note 160)}

	*	Wragge and Co, in their survey of Legal Heads of FTSE 1000 companies showed that 89% of respondents were in favour of the reforms. ^{(Note 161)}

	*	The Centre for Dispute Resolution conducted a MORI poll of practitioners, with an 80% level of satisfaction amongst respondents to their survey. ^{(Note 162)}

	*	Key aspects of the reforms were welcomed by the Association for Personal Injury Lawyers (APIL) and the Forum Of Insurance Lawyers (FOIL) who distributed a questionnaire amongst their members. ^{(Note 163)}

	*	Eversheds Access to Justice survey shows that 54% of its respondents said that the litigation process had improved. ^{(Note 164)}

	*	A survey by the firm of solicitors, Lovells, of their litigation lawyers confirmed that parties are now treating litigation as a last resort and are going to greater lengths to try and resolve disputes without recourse to legal proceedings. ^{(Note 165)}

221.	With a few notable exceptions (particularly Professor Zander), individual published comments have also generally been favourable.

221.1	This was true of Freshfields' general comment after the first year :-

		"...... initial reports from the courts and practitioners suggest that the changes have proved to be less disruptive than was feared and that despites some minor problems, the CPR are generally working well in practice. ......

		It appears that the antagonistic, adversarial culture deprecated by Lord Woolf is in decline and that in its place there is a new degree of cooperation between the parties. A new partnership is emerging between the parties, their advisers and the court. The new rules offer greater flexibility, and during the initial 'transitional phase' at least, the courts have been exercising their wide discretion with restraint. The new case management procedures are succeeding in defining the real issues earlier, and resulting in earlier settlements." ^(Note 166)

221.2	Similarly, in an article published in the New Law Journal in February 2000, Iain Goldrein QC and Margaret de Haas QC expressed support for the CPR in the context of personal injury litigation and conditional fees, arguing that it made costs and pricing more certain :-

		"'Woolf' is to be welcomed by both litigant and litigator. For the litigant, it provides in addition to more effective dispute resolution transparency of price and procedure. For the litigator, it secures through judicial case-management a litigation highway cleared not only of obstructions created by other parties, but also geared up for the speedy resolution of the discrete issue upon which the case is going to turn. The new procedural reforms can be interpreted as a recognition that restrictions on funding spell litigator insolvency if disputes are to be resolved by the traditional 'big-bang' oral trial.

		An unobstructed litigation highway which is orientated to the early resolution of disputes is a crucial pre-requisite to litigating to a margin when working in a fixed fee regime, or under a conditional fee agreement." ^(Note 167)

221.3	Also in the personal injury field, but this time from the defendant's perspective, Geoffrey Reed generally welcomed the CPR :-

		"Overall I consider the implementation of the new Rules has gone very well indeed. We are coping. Particularly, I think we are seeing some real benefits from the changes as well. There is undoubtedly a need for some refinement of the procedures but the benefits are already there to be seen." ^{(Note 168)}

221.4	In an article principally discussing the single joint expert in personal injury cases (discussed later), Carol Jackson commented generally :-

		"There are few practitioners who would do other than endorse the new CPR and find it a refreshing breath of fresh air, implementing reforms which were much needed." ^{(Note 169)}

222.	The Lord Chancellor's Department's overall comment relating to the first two years is as follows :-

"The view of practitioners and judges, with a few exceptions, is that the Civil Procedure Rules are working well. There are specific areas singled out for praise in the surveys, such as the change in culture from an adversarial climate to a more co-operative climate and a reduction in litigation. Although there is criticism from some quarters about litigation becoming slower and more costly, this is not felt by the majority of those who have expressed an opinion. Both judges and lawyers are in favour of the changes. Attempting to change many of the most significant features and the culture of the civil justice system is a huge task and it would be surprising if everything worked well from the start. In spite of the far reaching changes and the increase in workload resulting from case management which the courts have absorbed there is a feeling that the new system is running smoothly and that all the participants; court staff, judges, lawyers and other users are working to fulfil Lord Woolf's vision of a new civil justice system." ^{(Note 170)}

Notes

160	EF, §9.6. <back>

161	EF,§9.2. <back>

162	EF, §9.3. <back>

163	EF, §9.4. <back>

164	EF, §9.5. <back>

165	Ibid. <back>

166	"The Civil Justice Reforms One Year On - Freshfields Assess their Progress" M Bramley & A Gouge (Butterworths, London 2000), p 2. <back>

167	Iain Goldrein QC and Margaret de Haas QC, "Winning on a conditional fee - PI and clinical negligence" (2000) 150 JLJ 224. <back>

168	Geoffrey Reed, "Review of the Civil Procedure Rules from the Perspective of a Defendant Personal Injury Lawyer" [2000] JPIL 13. See also EF, §9.7 for other anecdotal quotations, mainly favourable. <back>

169	Carol Jackson, The Uses and Abuses of Experts and Their Evidence [2000] J.P.I.L. 19, 30. <back>

170	EF, §9.8. <back>