Judges need to lead the way in jolting lawyers out of their “comfort zones” so as to fully embrace the Jackson reforms, the Master of the Rolls has said, citing the lack of progress on disclosure and ‘hot-tubbing’ as examples where the new rules have not been embraced.
Lord Dyson also said that the “sensitive and sensible degree of flexibility” that the Court of Appeal displayed last year in its Denton ruling should be applied to rule changes as the Jackson reforms continue to bed in.
In a speech on the lessons of civil justice reform in England and Wales, delivered in Jersey, Lord Dyson said the approach to disclosure does not appear to have changed since the Jackson reforms were implemented – “Anecdotally (we have no hard data), it appears that the courts and litigants have continued as before” – while there were only a few reported cases of concurrent expert evidence, or hot-tubbing’, being used.
He said: “The difficulties that we have had in making progress in relation to disclosure and in promoting the use of concurrent evidence shows that successful reform requires more than simply changing the rules.
“Many lawyers tend to be rather resistant to change. They prefer the comfort zone of the familiar. Effective implementation of procedural changes requires the courts and the legal profession to understand the nature of the reforms and their rationale. The judges must take the lead in this.
“In the post-Woolf and post-Jackson world, they are required to take control of case management and shape the cases that come before them. It is therefore essential that the judges are given proper training to enable them to understand and become familiar with the reforms and to encourage them to apply them routinely.
“Our judges have all received training in respect of the Jackson reforms. Similar training may also be needed for the legal profession.”
At the same time, he expressed confidence that “with the passage of time, litigation behaviour will change. There have already been remarkable changes in England and Wales in the last 20 years”.
Lord Dyson said that judicial consistency, tempered by flexibility, were important elements of reform, and detailed the events around the Mitchell and Denton rulings.
He said: “Richards LJ has described the approach in Denton as a ‘brilliant readjustment’. It held the line, while ensuring that the approach taken was capable of effective implementation. It appears that it has succeeded in its aim: the stricter line is now being applied and applied consistently. It is having a beneficial effect on litigant behaviour.
“The adjustment was made in the light of the difficulties in applying the test that had been formulated in Mitchell. This is an example of the court modifying its approach to the application of a rule in the light of litigation experience.
“It seems to me that this evinces a sensitive and sensible degree of flexibility on the part of the court. The same flexibility should be adopted in relation to rule changes. If it becomes evident that a particular procedural reform is producing adverse consequences, remedial action should be taken to modify it.
“An ostrich-like attitude and a refusal to confront problems of this kind by sticking to a deficient procedure through thick and thin is to be deprecated. It is important always to be astute to the need to change procedural rules that do not facilitate the efficient and effective delivery of justice.”
Lord Dyson also suggested that an under-resourced Civil Justice Council largely relying on volunteers cannot carrying out the level of post-implementation monitoring of the effects of reform that is required.
“I would suggest that [this] should be carried out by a standing body; one that can keep the system under review and ensure timely adjustments are made to improve the way in which the system operates.”