The Woolf reforms were “inadequately revolutionary” and have left behind a civil litigation system which is “too expensive, too time-consuming and inadequately accessible”, the Chancellor of the High Court has said.
In a speech marking 20 years of the Woolf reforms, Sir Geoffrey Vos said that rather than “throwing the baby out with the bath water”, the reforms left behind “plenty of bath water that we could have thrown out”.
He went on: “Undoubtedly the Woolf reforms were radical in their day, but they did not, I think, shake up what was an already antediluvian system as much as they could have done.
“It must be recalled that the way we litigate was pretty well established at the end of the 19th century – even the courtrooms used in the Royal Courts of Justice were and still are laid out in the same way as they were then.”
Sir Geoffrey told a Law Society conference that abolishing evidence in chief in favour of witness statements, “regarded by many as a revolution”, turned out to be a “mixed blessing”.
Witness statements “became gargantuan and costly, and did not stick to the main evidential points in issue, but began in time to range far and wide over the entire history of the relationship between the parties”.
In some cases, Sir Geoffrey said the opportunity to hear a party’s own account of what happened “gave a judge a better insight into who was telling the truth than any number of lawyer-drafted documents”.
The Chancellor said a Business and Property Courts working party would be reporting shortly on how “bad practices” in this area could be improved.
Sir Geoffrey said expert evidence “probably needed a much more radical shake-up, even in 1999” because expert reports “have never stopped growing and the numbers of experts has proliferated”.
Although the Civil Procedure Rules (CPR) cut time spent cross-examining experts, time spent by judges reading their reports had “increased exponentially”.
Sir Geoffrey said that, as well front-loading the costs of civil litigation “at a stroke”, the CPR brought in stricter rules and time limits, which was “a very good thing” but had “caused difficulty to the legal profession”, as shown by the Miller and Denton rulings.
The Chancellor said the concept of the case management conference, ushered in by the CPR, had proved “successful but time-consuming”.
The “widely held” belief in 1999 that our system of discovery attracted foreign litigants to London was “an error”, and even the limited “standard disclosure” set out in the CPR was found by business litigants to be “costly and unnecessarily inflexible”.
Despite his criticisms, Sir Geoffrey said that, if the Woolf reforms had been more radical, they could have taken a “wrong direction”, because it was “only now that we can see the direction of travel of the technological revolution that is undoubtedly going to lead to major reforms of the litigation process”.
The Chancellor said future reform would have to “make full use of innovative technologies, including artificial intelligence”.
He said online dispute resolution provided “excellent access to justice”, and was economical on time and travelling, and would even provide a “direction of travel for the technological reforms of the court-based process for high profile, administration or commercial, business and property cases”.
The “essentials of high-quality judicial dispute resolution” needed to be rethought and the “peripheral and costly processes” of the CPR would not always be needed.
Procedural rules were “mostly not essential to the delivery of a just outcome” and some could “quite possibly be scaled back considerably”.
The Chancellor concluded by calling on litigators to take part in the capped costs pilot, offered on an opt-in basis for cases worth up to £250,000, in the London Circuit Commercial Court and the Business and Property Courts in Manchester and Leeds.
He said the pilot showed how complex disputes could be simplified, suggesting how technologically enabled dispute resolution under a reformed CPR should look in 2050.