Posts Tagged ‘Lord Woolf’
Developing policy on Alternative Dispute Resolution
Many people acknowledge that if disputes can be resolved in ways that do not involve a hearing in court, this can be more effective and flexible than litigation. But use of alternative dispute resolution (ADR) has been constrained by the fact that, for it to take place, both parties need to accept that this would be the preferable way forward. There has been a reluctance to requires parties to use ADR.
In July 2021, the Civil Justice Council published an important report in which it argued that it would not be unlawful for the use of ADR to be made mandatory.
In August, 2021, the Ministry of Justice published a Call for Evidence seeking information about the use of ADR to resolve family, business and other civil disputes away from the courts. The paper makes clear that, in a post-Covid world, it is important to rethink some of the ways in which dispute resolution and how they should be changed to improve access to justice, reduce cost, and deliver fairer outcomes.
Experience from a number of other countries suggests that an element of compulsion in the use of ADR is important in achieving broader acceptance of the use of ADR.
It is unlikely that detailed policy initiatives will be announced for some time. But it seems to me that policy makers and the senior judiciary are working together to create a more postitive context within which ADR will become a central feature of the dispute resolution landscape.
The Civil Justice Council’s Report is at https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/.
The Ministry of Justice’s Call for Evidence is at https://www.gov.uk/government/news/views-sought-on-dispute-resolution-vision. Submissions are sought by the end of October 2021.
Review of pre-action protocols in civil litigation – consultation from the Civil Justice Council
When Lord Woolf published his landmark report, Access to Justice, way back in 1996, one of his aims in making his recommendations for changes to civil procedure was to encourage parties contemplating litigation to put their cards on the table. This way, Lord Woolf thought, litigants might be able to come to their own settlement of the issues in dispute between them, rather than incurring the costs of an actual court hearing. Woolf argued that the courts should be the ‘forum of last resort’.
One of the methods for encouraging parties to come to the negotiating table was through the creation of pre-action protocols (PAPs) – steps that should be taken before formal legal proceedings started. Over the years 17 separate pre-action protocols have been developed for different categories of proceeding.
There have, however, been criticisms of PAPs. For example, it was argued that they created additional expense; they caused delay (both things Woolf sought to avoid); they were not effectively enforced by judges.
In October 2020, the Civil Justice Council announced that it was going to review the operation of PAPs.
According to the Press Release issued at the time: “The review will look at all aspects of PAPs including their purpose, whether they are working effectively in practice and what reforms, if any, are required.”
It went on to state that the Civil Justice Council was particularly interested in looking at how PAPs are working for litigants with limited means; the costs associated with PAP compliance; the potential of PAPs in online dispute resolution, and the potential for PAPs to be streamlined.
Although the Civil Justice Council did set out provisional Terms of Reference for their inquiry, it also said that the focus of the review was not closed. As a first step, the CJC decided to conduct a preliminary survey to obtain feedback and suggestions about what ought to be the focus of the review, and the priorities for reform. This was started in October 2020, and ran until December 2020.
The announcement of the review is at https://www.judiciary.uk/announcements/civil-justice-council-launches-review-of-pre-action-protocols/
The results of the initial survey are awaited.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 