Commercial litigation: Woolf's impact

Civil justice in England and Wales is due for a major overhaulin April 1999 when new Civil Procedure Rules come into force in theHigh Court and the county courts. These rules are the outcome ofLord Woolf's final report on the reform of litigation procedurepublished in 1996 (FirstSource, ).

PLC, 1996, VII(8), 6Since the report was published there have been extensiveconsultations and revised versions of many of the new rules. Someof the more radical proposals have been watered down or shelved.For instance, proposals to allow parties to apply for disclosure ofdocuments before a claim is filed will not be implemented for thetime being.

A number of the changes are likely to affect policy decisions atboard level concerning high value commercial litigation and thebalance of advantage between plaintiffs (now to be calledclaimants) and defendants.

Most of the new rules will only apply to proceedings which areissued after the rules come into force. The new approach isalready, however, to some extent, being applied in theinterpretation of the existing rules, although there areinconsistencies.

The overriding objective is to enable the court to deal withcases justly. This involves:

The new rules seek to shift the initiative in the conduct oflitigation from litigants to judges, giving them wider powers tomanage cases.

Most of the case management will be undertaken by DistrictJudges and Masters, who deal with most interlocutory applications.They will be expected to be more pro-active and to maintain thefile relating to court actions under review. Additional judges willhave to be appointed to facilitate this new role. This system willnot be fully effective until technology replaces the antiquatedfiling systems at the High Court (to be completed some time afterApril 1999).

Because the court will be in charge, there will be lesstolerance of delays. Court orders will more often set out what theconsequences of non-compliance will be (such as striking out theclaim or the defence). It will also be more difficult to persuadethe courts to relieve litigants from the consequences of theirdefault.

It is expected that more wasted costs orders against lawyerswill be made when delay or a waste of the court's time is caused bytheir incompetence.

This approach should lead to:

The case management rules will apply to existing litigation aswell as to claims issued after the new rules come into force.

The new rules seek to encourage settlement by:

Under the new rules both parties will be entitled to apply forsummary judgment on the grounds that the claim or defence has noreasonable prospect of success. This is a less onerous test thanapplies at present and may facilitate commercial debtcollecting.

Currently, the parties often have to prepare lengthy lists ofdocuments, most of which are of marginal relevance to the issues.Under the new rules, a party's duty to give disclosure of documentswill, in the first instance, be limited to "standard disclosure",that is, all documents on which he relies and which could adverselyaffect his own case; adversely affect another party's case; orsupport another party's case.

Where one party is not satisfied with the standard disclosuregiven, the court will have power to order a party to carry out asearch to the extent stated in the order and to disclose anydocuments located as a result of that search.

It remains to be seen to what extent the latest version of thenew rules changes existing practice. The test for establishingwhich documents are relevant under the existing rules has beennarrowly interpreted over recent years (O v M [1996] 2 Lloyd'sRep 347), so in practice the change is likely to be lesssignificant than envisaged.

The object of the proposals on expert evidence is to make itclear that experts' primary duty is to the court rather than theparty instructing them. The court will be able to direct thatexpert evidence be given by one joint expert rather than byopposing experts. This is a procedure which currently can only beadopted on the application of a party and is used rarely.

Any expert will be able to apply to the court for directions asto the exercise of his functions, if, for instance, he is beingasked by his instructing party to do something which he considersinappropriate. A party appointed expert may also be questioned bythe other party for the purpose of clarification of his report.Where an expert advising a party is not being called as a witness,the court may also require the party in question to produce areport relating to that advice whether he wishes to or not.