It is said that the conduct of civil litigation is about to be improved radically. The proposals Lord Woolf and his team made three years ago are about to be implemented. The rules have been completely rewritten and they will come into force on 26 April. It is, we are told, the biggest change affecting civil litigation since 1875.
Latin is out under the new regime, but, reading the new rules, a French expression comes to mind: plus ça change, plus c'est la même chose. In fact, there must be serious doubt as to whether the new rules will substantially affect the conduct or cost of claims against consultants and other parties in the construction process.
Case management by the court is the cornerstone of the new system. At the start of a case, the court will fix a date for the trial (or a period during which the trial will take place) and will also set a timetable for the things that have to be done by the parties leading up to the trial. This, however, has been the procedure in the Technology and Construction Court for years.
And what about the things that have to be done? Pleadings, which set out a party's case, are still to be delivered, although now they will be called "statements of case". There will still be discovery of documents – which often accounts for as much as 50% of the costs – but this will be called "disclosure". Parties will be required to give standard disclosure of documents. For each party, this covers documents on which it relies to support its case and documents that are adverse to its case. This is unlikely to be very different from what happens at present.
The evidence for the trial will be prepared in the same way as now. Statements of fact by witnesses a party wishes to call will have to be prepared and served on the other side. The preparation and exchange of witness statements is a procedure pioneered in the Technology and Construction Court some years ago. It was hailed as an enlightened reform. In fact, it has caused a huge increase in costs, since the parties have to spend a considerable amount of time, at a relatively early stage, setting down all the factual evidence on which they might wish to rely.
Although the witnesses should write the statement themselves, identifying the relevant evidence is a process in which the lawyers are inevitably heavily involved. We are still working in an adversarial system where the prime duty of solicitors and barristers is to advance their client's case.
To call expert evidence, the parties will still have to instruct expert witnesses and serve experts' reports. The court could order a single expert to be instructed, but I cannot see this being done in cases where the court has to decide issues of negligence against consultants. Even if it is, it is very likely that the parties – especially the party being sued – will still want to receive their own advice from an expert.
The rules stress that expert witnesses owe a primary duty to the court, but will this change anything? It has always been in the interests of the parties for their expert witnesses to be seen as independent. An expert who is obviously no more than a hired gun will always do more harm than good to their client's case.
Case management that lays down timetables and insists that they are adhered to may avoid some of the grosser delays that have occurred in the past, and may force the parties to prepare the cases more thoroughly at an earlier stage in the proceedings. But this is hardly likely to reduce costs. Making people work harder may have the opposite effect, especially where costs are time-based.
In theory, judges will be able to use their powers of case management to dispose of individual issues and direct what evidence can and cannot be called. But to have a serious impact on costs, such powers will have to be exercised at an early stage of the case. In cases of any complexity, judges are unlikely to be able to do this to any significant extent without risk of causing injustice.
The new rules are clear and easier to read than the old – although it comes as a bit of a shock to be confronted with a large schedule consisting of old rules that have been preserved. A special practice direction to deal with procedure in the Technology and Construction Court is awaited. For the moment, it all seems to be much more of a change of style rather than substance.
- Procedures under new rules for civil litigation will remain much as they are now, although with different names
- Improved case management is not likely to reduce costs.
Postscript
Rachel Barnes is partner at solicitor Beale and Company.
