Big Lawyers and Little Lawyers

It will soon be two hundred years since Napoleon, as First Consul, appointed four not especially distinguished lawyers to sit down and codify the entire heterogeneous mass of French civil law. They were appointed in August 1800 and by February 1801 had produced and published a complete draft of the Civil Code. After taking the views of the judges and the Tribunal, Napoleon chaired nearly half of the 123 subsequent redrafting sessions of the Conseil d’Etat, some lasting from noon to dawn, repeatedly insisting that detailed prescriptions would be self-defeating; that the right method was to set out the goals the courts were to achieve. By the spring of 1804 the whole project was law. The fresh codification now under way under the great conseiller Braibant is the task of a decade where Bonaparte’s commissioners took little more than four months. In Hong Kong yet worse has happened: an attempt in the best colonial tradition of demented heroism to codify the English common law in Chinese (something nobody has yet done in English) in time for the handover in 1997 has foundered on problems of translation. Initial worries about the Mandarin equivalent of issue estoppel and certiorari were overtaken by the catastrophic rendering of barrister and solicitor as ‘big lawyer’ and ‘little lawyer’ respectively, giving lasting offence to Hong Kong’s solicitors and bringing the project ultimately to a standstill.

As Lord Chancellor, Lord Mackay, whatever his detractors say, is no Bonapartist; but he, too, was faced with the prospect of piloting procedural reform through the weed-blocked channels of advisory committees whose most modest proposals take years to get implemented. In March 1994, he appointed a single senior judge, Lord Woolf, to review all the existing procedures of the civil courts of England and Wales with the aims of improving access to justice, reducing the cost of litigation and, as means to these ends, simplifying the language and rationalising the content of the present rules. Woolf assembled a team of five assessors, travelled the world, held open seminars, received hundreds of submissions, commissioned a little research (there was no proper research budget), set up a dozen specialist working groups and retained an academic consultant and a consultant on information technology – Richard Susskind, publication of whose own book coincides with that of the Report.

Little more than two years from his appointment, and a year on from his interim report, Woolf has presented a comprehensive final Report, accompanied by a redraft of the rules for the conduct of civil proceedings. By contemporary legal and governmental standards the timescale is remarkable. The anxious question has been whether the project would be passed into law within the next two years, matching the Napoleonic achievement, or whether it was going to drift into that crepuscule of political and departmental inertia where so many Law Commission proposals are now mouldering. Meanwhile, the Lord Chancellor has moved Lord Woolf to the key post of Master of the Rolls (the head of the Court of Appeal) and has appointed Sir Richard Scott, who is now head of the Chancery Division, to the executive post of head of civil justice. But Labour’s Lord Chancellor-in-waiting, Lord Irvine, has raised a warning hand: nothing should happen until both the Woolf proposals and the legal aid scheme have been evaluated as part of a comprehensive review of the civil legal system, and then not if it costs extra money. That it will cost money is inescapable: the Legal Action Group, a powerful independent think-tank, has warned that to implement the changes without the necessary investment will spell chaos. Woolf and Susskind have the same response: the long-term cost of doing nothing will dwarf the medium-term cost of reform. Woolf himself takes note of the current review of the legal aid system but says: ‘It is essential that the reforms of legal aid should take into account and support the recommendations I am making.’ That is unlikely to be the Treasury view: it has always considered legal aid a drain on the nation’s finances, and it will wish instead to see the Woolf reforms take into account and support the coming straitjacket on legal aid. So it is entirely welcome that Lord Mackay’s response to the Woolf proposals is not wholly Treasury-driven: he has decided to postpone the radical changes to the legal aid system which are now on the table (and which, if implemented, will bring us closer to a national legal service, at least for the poor, than anything ever attempted in this country) until it is seen how the Woolf reforms are working out. He has undertaken to find the money to pay for the reforms, and though his promise to do so from within his existing budget sounds a little like the introduction to a conjuring trick, the rabbit might be real. In none of this are Mackay and Irvine actually far apart. The enabling Bill is already before Parliament and Mackay’s overall timescale – to have the new system in effect by the end of 1998 – is very little longer than Napoleon’s.

We are therefore at a critical point in legal history. Although it is still legitimate to worry whether the money will be available for everything that is needed, it is no longer possible to wonder what reform implies, because here it all is, complete with a new draft rulebook written in simple English and a fraction of the thickness of its living ancestors. The reforms are far from merely technical. Woolf has addressed, for example, the issue on which I commented not long ago in these pages of the recruitment of experts as partisan witnesses in medical negligence and similar cases. To the defenders of the adversarial system he remarks:

The present system works well for lawyers and judges, but ordinary people are being kept out of litigation ... The purpose of the adversarial system is to achieve just results. All too often it is used by one party or the other to achieve something which is inconsistent with justice by taking advantage of the other side’s lack of resources or ignorance of relevant facts or opinions.

He proposes, as a rule open to exceptions, a single court-appointed expert. Where conflicting experts are allowed, their instructions (a common source of bias or pressure) are to be disclosed to the other side. ‘The appointment of a neutral expert,’ he says, ‘would not necessarily deprive the parties of the right to cross-examine, or even to call their own experts in addition to the neutral expert if that were justified by the scale of the case.’ Such a compromise is inevitably imperfect. There have in the past been in some medical specialities (obstetrics and orthopaedics come to mind) a handful of figures so highly regarded that their word on professional negligence was law, and the cases did not come to court. But in most fields court-appointed experts will themselves be known to belong to one or other school of thought or of practice. They will be open to cross-examination not only, and rightly, about this but along the lines ‘Are you aware that Professor Strabismus, whose report I hold in my hand and who is sitting behind me, contests not only your conclusions but your premises, your qualifications and your integrity?’ The Mandy Rice-Davies response is unlikely to be sufficient in such a setting, and we may find ourselves close to where we started, with adversarial blood-lettings between hired experts – unless the goal of judge-managed litigation really is made the predominant one.

The trouble is that judges are not trained to be managers. They are not even required to be computer-literate. This is a difficulty which has become acute in other fields: hospitals require specialised medical management, a skill for which there has been no specialised training or career-path, with the result that instead we have a mixture of accountants getting perilously close to involvement in clinical decisions and trained doctors forsaking medicine in order to become untrained managers. But, unlike most of these hybrid professions, and unlike some of the established professions, the judiciary now has a self-managed training board, the Judicial Studies Board, which has a substantial budget and which is organising intensive case-management training for the judiciary.

Managing lawyers who are trying to co-operate is of course a lot simpler than refereeing contests between hired pugilists, and Woolf wants to see the introduction of pre-action protocols designed to stop the parties shaping up to each other like prizefighters and finishing up in court simply because neither will back down. It all requires the sort of goodwill that many paying clients don’t want and which, even if they do, won’t pay a commercial solicitor, fuelled – in a recent phrase of the solicitor Anthony Julius – by bottomless reserves of indignation, nearly as well as an acrimonious contest that goes at least to the door of the court. The kind of shameful thing judges see is a minor dispute about which, years ago, two small businesses or people of modest means consulted their respective solicitors, leaving it to them to sort out. Writs have been issued, and the umpteenth skirmish in a procedural war of position is now taking place, with barristers briefed on both sides and costs at a level which makes settlement impossible. The clients, who will be writing periodic cheques to finance it, may well have no idea that their litigation is out of control. Such imbalances, it is true, are not new. In the Thirties my father, a solicitor, was in a county court when the senior partner of a firm specialising in workmen’s compensation cases got to his feet and asked the judge to enter judgment by consent for a global figure of £300. The judge, who had some experience of these cases, insisted on being told how much of it was damages for the plaintiff and how much costs for the solicitor; it turned out that the latter exceeded the former. ‘Just remind me, Mr X,’ he said wearily, ‘was it you or your client who had the accident?’ ‘A system which usually pays those who litigate cases as much as, and sometimes more than, the victims receive in compensation,’ says Woolf, ‘simply fails to command public confidence.’ If appealing for goodwill among the professionals cannot stop it, the reasoning goes, the courts themselves must.

Before this point is reached there are several expedients which Woolf proposes. In most of them he has in fact gone some distance, without saying so, to meet the anticipated clampdown on legal aid. The ground rule, of which we were proud, used to be that a client with legal aid got the same standard of service as a millionaire. Under a complex of pressures – an absolute growth in litigation, inflation of lawyers’ fees, increasing sophistication of litigation techniques, occasionally unscrupulous use of legal aid – this has been silently yielding to the principle that legal aid cannot be expected to underwrite more than a minimum of legal provision. In consequence, one of Woolf’s major themes, equality of arms, is pursued in terms of levelling down, not up. It is this which explains, for example, his preference for court-appointed experts, in spite of a barrage of professional protests. It also plays a part in his endorsement both of the now widespread support for ADR (alternative – or, as others prefer to call it, appropriate – dispute resolution) and of a long-term trend of relegating ‘small’ claims to courts where procedures verge on the brusque. These are in fact the claims that matter most to most people: significant but not catastrophic injuries at work or on the road, housing conditions, housing benefit, rent arrears and repossession. They sometimes raise difficult questions of law and sometimes require considerable forensic skills to find out what the true facts are. Woolf deserves applause for devoting a separate chapter to housing cases, proposing a series of changes which, without elevating these disputes to battles royal, will simplify and codify the relevant law and make it procedurally possible to do justice without unacceptable delay or cost.

He has, however, rejected a powerful argument against his proposal to allocate all claims up to £10,000 in value to a new ‘fast track’ procedure where the legal costs are to be limited to about £2500 per case. Only exceptionally complex cases in this bracket will be able to get switched to the ‘multi-track’ system, which offers a range of managed options tailored to the issues and which will be where all other cases begin. There is some force in the complaint that small claims are being unjustifiably singled out for the cheap treatment, especially when the research data suggest that the real problem with smaller claims is not their cost but the length of time – often five years – that they take. There are multi-million pound cases which turn on a single short point of law or fact, and where only very modest costs can be justified; yet these are to start off on the multi-track without a cost ceiling, while a potentially complex claim for a nasty but not grave injury will require special reasons for getting off the cheap and cheerful fast track, where determined repeat-player defendants who simply refuse to settle may succeed in making claims economically untenable. Is there perhaps a too ready identification of undue expense with the (inevitably high) ratio of costs to damages in small cases, when the real culprits are the big cases, where the ratio may be lower but the unnecessary expense far greater? If there is, the anecdotes earlier in this piece illustrate the fallacy; but it also means that Woolf’s reasoning requires another hard look.

One expedient he proposes is of particular constitutional interest. It is that the ombudsmen should be able to refer questions of law to the courts in housing cases, and that the courts should have power to enforce the payment of compensation where the ombudsman has reommended it. Since this is a valuable idea which Lord Woolf has explored before on a much larger scale, the puzzle is why he now puts it forward in such a limited form. One of the great problems in litigation between the individual and the central or local state is that the individual usually has no prior idea of what relevant files or documents exist. The courts have, however, become very chary of requiring whole filing cabinets, even whole offices, to be turned over to lawyers searching for revealing documents. The ombudsmen who investigate complaints against local and central government, and against housing associations which increasingly are replacing local authority landlords, have staff with unique expertise in the surgical exploration of official processes: they know what to look for and where to find it without bringing an office to a standstill. Woolf’s idea has been that the ombudsmen and the courts should have dovetailing functions, so that the courts can ask the appropriate ombudsman to say whether there is anything in the official files that the court ought to see before it decides a particular case, or even to take over a case more appropriate for investigation than for adjudication, and so that an ombudsman can ask the court to take over an essentially legal complaint or to rule on an issue of law which has come up during an investigation. Woolf may have felt that his full project is more ambitious than his present remit will bear: but the Government would do well, in considering the Report, to go back to his 1989 Hamlyn Lectures and consider whether the whole interesting package, rather than a small part of it, deserves enactment.

In view of his muscular approach to case management and of his initial finding that ‘the existing rules of court were being flouted on a vast scale,’ it is perhaps surprising that Lord Woolf’s new system continues not to penalise lawyers who waste time and resources. He proposes no fundamental change to the present system by which, if a solicitor forgets to take a step in time, the consequent costs order falls not on him but on the client who has been paying him to get on with the case. What would be wrong with a regime which started from a presumption that it is the lawyer, not the client, who is to pay for procedural failures? It will occasionally be displaced, no doubt, when it turns out to have been the client who was holding things up, but in the great majority of cases it will concentrate the legal mind like little else. It might also do something, incidentally, to break the log-jams caused by barristers who stockpile briefs and keep solicitors waiting for inordinate lengths of time for the advice or drafts they need.

A great deal of what the Woolf Report envisages depends on reliable computer systems for recording, processing and monitoring cases. The judiciary already have their own information system, though it is not universally used. Practitioners use a different system. The committed in both groups use the Internet. The county courts have a management program which is still under development. If other courts have to have other systems, the whole concept of the single point of entry and of a unified system will begin to fissiparate. Richard Susskind sees judicial technology as a part of a much larger transformation of legal practice which information technology is making not only possible but indispensable. A solicitor himself, he writes as an admitted aficionado and optimist, perhaps too schematically to be easily digested (‘For whom is this book?’ reads an over-grammatical crosshead), but urging realistically and knowledgeably the case for enabling IT to permeate the administration of the law. For solicitors and barristers the case is unanswerable. It has already made headway in those courts where the traditional rows of buckled arch-binders, each slightly differently paginated, have been replaced by a handful of disks; where computer-literate judges and lawyers, along with the jury, survey the evidence on screen and move briskly from document to document. In another dimension it has enabled scared children to give their evidence by video link. Susskind’s argument, which deserves to be taken seriously, is that we are reaching a turning-point in communication technology as critical as the Gutenberg revolution, and one which will infuse law with a range of new possibilities comparable to those with which print began to infuse it six centuries ago.

How far can it go? Susskind considers the possibility of substituting Artificial Intelligence for human judgment. Before you laugh (and assuming therefore that you think there is a difference) you should know that at least one American state has computerised sentencing, only to find that the judges who fed in the data were loading them to get the sentence they thought right. But Woolf has seen and been impressed by interactive systems which will give legal advice in court foyers much as a Citizens’ Advice Bureau can do here. Susskind sanely concludes that although systems which can choose between competing arguments or apply probability theory to rival factual accounts are conceivable, it is only where one can decently classify such a function as one of public administration that it can be removed from the reach of human judgment. He might have added that it is the very function of deciding why to choose one argument rather than another, the capacity to perceive why an inherently improbable account is in the circumstances probably true or why it is time for a received doctrine to be reconsidered, which makes adjudication and lawgiving irreplaceably human – because creative – functions.

It is in relation to the plunge into information technology, however, that Woolf flags up some serious concerns. Because of the need for homogeneity in the future system, Woolf considers it likely that whoever obtains the contract for the county court system (and the contract has now been let) will become the sole contractor for the whole of the civil courts. If this is to be achieved through the ‘not uncontroversial’ Private Finance Initiative, Woolf warns, the problems arise ‘of retaining control over policy and strategy where there are powerful and capable service providers running the IT infrastructure’ and of creating a monopoly which is incapable of ever being disturbed. Although he deliberately skirts the political controversy about the PFI, it is in fact no longer a subject of controversy between the two main parties. Faced with this as the inevitable mode of provision, Woolf proposes that his governing body, the Civil Justice Council, should have a dedicated IT committee to promote, co-ordinate and monitor the system. This may well be the most that can be done to retain some control now that it has become a canon of government to part wherever feasible with the implementation of policy and to source public capital investment from the private sector – radical changes which also belong to the new world into which Woolf’s cost-efficient, brisk and high-tech system of justice hopes to be born. At least the late entry of the legal system into the IT universe will allow it to acquire software which will not implode at midnight on the turn of the millennium. What for lesser businesses will be the end of the world may for lawyers – as usual – be the beginning of a whole new ballgame.