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Traditionally there was no procedure to enable one party to obtain the names
of his opponent™s witnesses, let alone their statements, and there was equally no
procedure for oral examination of the other side™s witnesses in advance of the
trial, but in this area there have been some dramatic changes which completely
transformed English pre-trial procedure.
The Winn Committee in 1968 considered but rejected the proposal for com-
pulsory exchange of witness statements (called ˜proofs™) and for pre-trial exam-
ination of the other side™s witnesses. With regard to the suggestion that proofs
of witnesses should be exchanged, the Committee said simply: ˜we do not think
the time has yet come, if it ever will, when this fundamental change should be

191 192
(1982) 12 Fam Law 62. [1986] 1 All ER 733.
105 Getting evidence from witnesses


recommended™.193 There was no further treatment of the subject nor any
discussion of what made the suggestion inappropriate.
With regard to the suggestion that names of witnesses should be exchanged
together with their addresses, the Committee said: ˜we equally think that this
should not take place. Foreign jurisdictions seem to be equally divided in rela-
tion to the exchanging of names of witnesses. Except in some American states
the strong tendency of countries operating in a common law atmosphere is
against exchange™ (para. 370). Again there was no further discussion. In rela-
tion to the suggestion that the other side™s witnesses should be examinable by
some form of pre-trial examination, the Committee said this would so com-
plicate, delay and increase the cost of litigation that it should be rejected
(para. 355).
However, although the Winn Committee in 1968 was against a general prin-
ciple of exchange of witness statements it did favour some exchange. It described
the traditional approach to litigation as one of ˜trial by ambush™: ˜our present
procedures . . . adopt the adversary system as “trial by ambush”. The courtroom
resembles an arena. It is regarded as good tactics to keep the other side in
the dark so far as it is possible, and if one party can spring a surprise upon the
other, then an advantage has been obtained by which such party may pro¬t™
(para. 131).

Revolution in the rules for the exchange of evidence
The Winn Committee recommended that medical evidence be subject to a rule
of exchange and that where such exchange had been ordered, no medical evi-
dence should be admitted at the trial unless its substance had been exchanged
in advance. This recommendation became the basis of the rapid change in
English procedure which resulted in new rules requiring each side in civil cases,
save in exceptional circumstances, to give to the other pre-trial the statements
of any witness they intend to call. Failure to comply normally results in not
being permitted to call that witness at the trial.194
By the time that Lord Woolf started his inquiry, pre-trial disclosure of state-
ments of both expert witnesses (RSC Order 38, rr. 36 and 37) and non-expert
witnesses (RSC Order 38, r. 2A) had been mandatory in the High Court for
several years. Indeed, the matter had gone further still in that the witness state-
ment was normally used not merely pre-trial, but stood as the witness™ evidence
at the trial itself. That rule was promulgated in January 1995 by the Lord Chief
Justice and the Vice Chancellor in a Practice Note195 stating: ˜unless otherwise
ordered, every witness statement shall stand as the evidence-in-chief of the
witness concerned™. This was equally stated to be the position in the Civil
Procedure Rules “ CPR 32.4(2) and 5(2).
193
Report of the Committee on Personal Injuries Litigation, 1968, Cmnd. 369, para. 368.
194
For a detailed account of the successive stages of this reform process, see a note in 12 Civil
Justice Quarterly, 1993, pp. 5“8 and the note in 14 Civil Justice Quarterly, 1995, pp. 228“30.
195
[1995] 1 All ER 385.
106 Pre-trial civil proceedings


In a matter of ten years or so therefore the English system had gone from the
position where witness statements were never available before trial to a position
where they are virtually always available “ and indeed normally constitute that
party™s evidence-in-chief at trial.
There are however exceptional situations where exchange will not be ordered.
In Richard Saunders & Partners v. Eastglen Ltd196 it was held that an order would
not be made under Order 38, r. 2A where fraud was alleged and it might be nec-
essary to preserve an element of surprise, or where exchange would be oppres-
sive because there would be great di¬culty or expense in obtaining a statement,
or where the application is made too late and the preparation of witness state-
ments at that stage would add to rather than save costs. In McGuinness v. Kellogg
Co of Great Britain Ltd197 the Court of Appeal approved a decision to allow the
defendants to show a video of the plainti¬ made by the insurance company™s
inquiry agent in a personal injuries case “ without ¬rst disclosing it pre-trial to
the plainti¬ or his advisers. But the Court of Appeal took the opposite view in
a later similar case Khan v. Armaguard Ltd198 on the ground that it was precisely
in cases where video evidence exposed the plaintiªs fraud that pre-trial disclo-
sure was appropriate.

Has the exchange of witness statements proved beneficial?
The exchange of witness statements was introduced as a way of improving the
process of civil litigation but to some critics it has made matters worse. A county
court judge, Judge Nicholas Brandt, published a letter to Lord Woolf in March
1995 in which he said:
Exchange of witness statements was thought to promote settlements, and, in
default, to speed up trials, thereby reducing expense. Experience has demon-
strated the futility of these aspirations. The overwhelming majority of cases
(about 97 per cent) settle anyway and there is no evidence that this device has
increased the percentage. There is overwhelming evidence that the preparation
of these statements has turned into a cottage industry. I have talked to members
of the Bar who cheerfully confess to spending hours drafting these documents.
Cui bono? “ not the litigant. Incidentally, some are badly drafted, containing
much irrelevance and hearsay, leading to applications to strike out and more
expense.199


196 197 198
[1990] 3 All ER 946. [1988] 2 All ER 902. [1994] 3 All ER 545.
199
˜Some Serious Thoughts from Essex on Civil Justice™, 145 New Law Journal, 10 March 1995,
p. 350. For a wide-ranging critique of the cost and delays inherent in the modern insistence
on ˜cards on the table™ “ discovery, witness statements, interrogatories, pleadings etc. “ see A.
Jack, ˜Radical Surgery for Civil Procedure™, 142 New Law Journal, 18 June 1993, p. 891. For
similar views see A. Speaight, ˜A Bon¬re of the Paper Mountain™, Counsel,
November/December 1994, p. 4. Speaight suggested that witness statements gave a signi¬cant
advantage to the wealthier litigant. If they stand as the witness™ evidence-in-chief, the
ascertainment of the truth becomes more di¬cult because the judge no longer has the
opportunity of seeing the witness telling his story in his own words. The cost of trials had
been considerably increased.
107 Getting evidence from witnesses


Lord Woolf, in his Interim Report, said that his inquiry had received ˜a consid-
erable volume of information indicating that the exchange of statements is not
proving as bene¬cial as had been intended™.200 ˜At a meeting of the Commercial
Court Users™ Committee on 1 February 1995, there was general agreement that
it was having a devastating e¬ect on costs. This was because statements were
being treated by the parties as documents which had to be as precise as plead-
ings and which went through many drafts™. A Commercial judge said that ˜an
enormous amount of time is now spent by lawyers ironing and massaging
witness statements; that is extremely expensive for clients, and the statements
can bear very little relation to what a witness of fact would say™. A leading QC
said that in a case of his, £100,000 had been expended in preparing witness
statements.
Lord Woolf concluded: ˜there is justi¬cation for the concerns which are being
expressed about the results of requiring witness statements to be exchanged.
The problem is primarily in relation to the heavier litigation. Nonetheless, it
does spread to more modest litigation and it needs to be addressed™. He never-
theless ¬rmly endorsed the practice of requiring the exchange of witness state-
ments as a way of ensuring that the parties are aware before the trial of the
strengths and weaknesses of the case they have to meet. ˜The sooner a party is
aware of this, the more likely it is that the outcome of the dispute will be a just
one, whether it is settled or tried™.201
However the excesses should be eliminated. The new industry devoted to the
creation of witness statements would be more likely to wither, Lord Woolf sug-
gested, if the courts adopted a more relaxed attitude to the statements: ˜if it is
generally understood that a witness will be allowed to develop points already
referred to in a witness statement, most of the bene¬ts which are to be derived
from the exchange of witness statements should still be achieved, but without
the need for exhaustive drafting intended to achieve pedantic accuracy™.202 (To
that end, the new rules state that a witness giving oral evidence may with the
permission of the court ˜amplify his witness statement™ and also ˜give evidence
in relation to new matters that have arisen since the witness statement was
served on the other parties™ (CPR 32.5(3)).) Lord Woolf concluded this section
with a hope repeated several times in his Interim Report: ˜in the case of witness
statements . . . the solution to the present problem will depend on practition-
ers behaving in a sensible and co-operative way. If the court is prepared to adopt

In the same issue of Counsel, F. Bawdon said that witness statements had taken on a
signi¬cance undreamed of hitherto: ˜witness statements are getting longer and longer, and
lawyers are spending hours and hours working on them with their clients. In many cases they
became not so much witness statements as lawyers™ statements™. She quoted a leading
commercial QC: ˜the lawyer knows what has to be proved. It is lawyers™ language which is
used. As a result of statements being so ¬nely crafted, the potential for injustice increased. You
are e¬ectively manufacturing evidence™. On abuse of witness statements, see also ZYX Music
GmbH v. King [1995] 3 All ER 1 per Lightman J. and the note on the case in 14 Civil Justice
200
Quarterly, October 1995, p. 228. Interim Report at p. 176, para. 6.
201 202
Interim Report at pp. 176 and 177, paras. 9 and 10. Ibid at p. 178, para. 13.
108 Pre-trial civil proceedings


a more ¬‚exible attitude, the parties and their advisers will need to respond by
adopting a more sensible approach to the preparation of witness statements. If
they do not, the court must make it clear that they will bear the cost™.203
A remarkable further proposal in Lord Woolf ™s Interim Report was that cross-
examination on the contents of witness statements should only be allowed with
the leave of the judge. ˜Such leave should not be given for cross-examination in
detail. Nor should it usually be necessary even when a more signi¬cant feature
is relied upon. The advocate™s comment will be all that the judge will usually
require™!204 This proved too radical. In the new rules the proposal that cross-
examination should require the permission of the court was adopted for hear-
ings other than a trial but was not adopted for the trial itself (CPR 32.7).

Who can inspect the witness statements?
CPR 32.13(1) provides that a witness statement that stands as evidence-in-chief
is open to inspection ˜during the course of the trial™ unless the court otherwise
orders.
Anyone can ask for a direction that a witness statement is not open to inspec-
tion (CPR 32.13(2)), but the court will not give such a direction unless it thinks
it should because of the interests of justice, the public interest, the nature of
expert medical evidence, the nature of any con¬dential information in the state-
ment, or the need to protect the interests of a child or patient (CPR 32.13(3)).
Under the former rules205 the presumption was that witness statements were
not open to inspection but anyone, such as a media representative, could ask for
a direction permitting inspection. If granted, such inspection could take place
both during the trial and beyond the end of the trial. The presumption is now
reversed but the time for inspection appears to be restricted to the trial. The
White Book suggests that presumably an interested person could apply for a
direction that inspection be permitted after the end of the trial.206


The expert witness in the pre-trial process
As has been seen, the pre-Woolf rules required the parties to exchange the reports
and statements of the experts on whom they intend to rely at the trial. In his
Interim Report Lord Woolf said that the subject of expert evidence had caused his
inquiry much concern. Concern had been expressed in particular that the need
to engage experts was ˜a source of excessive expense, delay and in some cases,
increased complexity through the excessive or inappropriate use of experts™.207
Concern had also been expressed regarding a lack of independence of experts.
Most of the problems with expert evidence arose because the expert was
initially recruited as part of the team and then had to change roles and seek to

203 204
Ibid at p. 179, para. 21. Ibid at p. 179, para. 18.
205
RSC Order 38, r. 2A(12)“(16) and CCR Order 20, r. 12A(12)“(16).
206 207
Civil Procedure, 2006, p. 830. Interim Report at p. 181, para. 1.
109 Getting evidence from witnesses


provide the independent expert evidence which the court was entitled to expect.
The judges often exercised their power to ask the experts to meet to try to agree,
but this did not seem to deal with the problem of the partisan approach of the
respective experts. Before such meetings, the experts were quite often instructed
by their respective parties not to agree to anything. Alternatively they were told
that anything agreed between the experts had to be referred back to the lawyers
for rati¬cation.
Lord Woolf cited an editorial in the Bar™s journal Counsel in November/
December 1994 which said that expert witnesses were ˜hired guns™. There was,
the editorial suggested, a ˜new breed of litigation hangers-on, whose main
expertise is to craft reports which will conceal anything that might be to the dis-
advantage of their clients™. The disclosure of expert reports ˜which originally
seemed eminently sensible, has degenerated into a costly second tier of written
advocacy™. This ˜deplorable development™ had been unwittingly encouraged by
a generation of judges who wanted to read experts™ reports before coming into
court and by Practice Directions stipulating that the reports be lodged in court
to enable them to do so.
Waiting for experts™ reports, Lord Woolf said, was also a cause of much delay.
It was not uncommon for six to nine months to elapse between a request for a
report and its delivery.208
This unhappy situation had become institutionalised. Lawyers repeatedly
instructed a limited class of consultants for reports. There was a serious short-
age of suitable experts. The best doctors tended also to be the busiest.
Lord Woolf proposed changes that would address these issues:
• In multi-track cases the judge at the initial case management conference
would distil the issues from the parties™ statements of case and, if necessary,
would decide what expert evidence was needed on each issue. The key issues
should then be narrowed through exchange of experts™ reports and through
meetings of experts, so that only areas of disagreement would have to be
decided by the court.209
• In some cases the court should appoint an independent expert. There was
already power to do so under RSC Order 40 on application by either party “
a power that was hardly ever used. Parties did not like it because the cost
was in addition to their own experts and they did not trust the court expert.
Lord Woolf said these were real concerns, but ˜as long as they are borne in
mind, there will be cases where it will be the best course to appoint an
independent expert™.210 If the parties could not agree on the appropriate
independent expert, the relevant professional body could be asked to make
the appointment.
• Rules of court should permit the court to appoint an independent expert of
its own motion and to limit the parties™ power to call any expert save under

208 209
Interim Report at p. 184, para. 12. Ibid at p. 185, para. 18.
210
Ibid at p. 186, para. 22.
110 Pre-trial civil proceedings


the direction of the court.211 This would not however prevent the parties from
having their own expert to guide them, especially with regard to cross-
examination of any other expert who gave evidence. The additional cost of
the neutral expert would usually be justi¬ed ˜by helping to achieve a settle-
ment, or in the assistance he will provide to the judge™.212 There should be a
wide power for the court of its own motion to refer issues to experts either for
determination or report.
• All experts should address their reports to the court. Any instructions they
received from the party employing them should be disclosed in the report.
The report should end by a declaration that it included everything the expert
regarded as relevant.213
• If experts met at the direction of the court it should be understood that they
were under a duty if possible to reach any agreement that was appropriate. If
they could not do so they should specify the reasons. It should be unprofes-
sional conduct for an expert to accept instructions not to reach agreement at
such a meeting. Once an expert had been instructed to prepare a report for
use of the court, any communications between the expert and the client or his
advisers should no longer be privileged.214
• No subpoena for attendance of a medical expert should be issued without
leave of the procedural judge.215
• In fast track cases, because the timetable was very tight and trial would be
limited to three hours, it would be necessary for the court to be able to resolve
expert issues without oral evidence. In order to achieve that the court should
choose from among the following options: (1) the joint appointment of an
expert at the outset, chosen, if possible by the parties, if not by the court;
failing that no more than one expert per side; (2) separate reports from the
experts with the court deciding the issue on the basis of the reports plus argu-
ment by counsel; or (3) the reference of the issue to an expert to determine or
report when the expert would communicate with experts appointed by the
parties before coming to his conclusion.216
In his Final Report Lord Woolf devoted ¬fteen pages to the problem of expert
evidence. He said that there had been widespread agreement with his criticisms
of the way in which expert evidence was used, but his speci¬c proposals had
˜provoked more opposition than any of [his] other recommendations™.217 Most
respondents favoured the retention of the full-scale adversarial use of expert
evidence and resisted proposals for wider use of single experts (˜the idea is
anathema to many members of the legal profession™) and for disclosure of com-
munications between experts and their instructing lawyers.
The basic premise of his approach, he said, was that the expert™s function was
to assist the court. He did not recommend a court-appointed expert or a single

211 212 213
Ibid at p. 187, para. 23. Ibid. Ibid at p. 188, para. 27.
214 215 216
Ibid at p. 188, para. 28. Ibid at p. 189, para. 29. Ibid at pp. 189“90, para. 32.
217
Final Report at p. 137, para. 5.
111 Getting evidence from witnesses


expert for every case. The court should have a range of options. The appoint-
ment of a single expert ˜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 justi¬ed by the scale of the case™.218
Lord Woolf admitted that, given the strength of opposition to his proposals,
˜it would not be realistic to expect a signi¬cant shift towards single experts in
the short term™,219 but it was possible to initiate a shift in that direction. The
rules should specify that as a general principle single experts should be used
where the issue concerned an established area of knowledge and where it was
not necessary to sample a range of opinions. Where two experts were appointed
they should if possible write a joint report. Expert reports should contain the
contents of all written and oral instructions.
The CPR regime In the CPR, expert evidence is treated in Part 35. Rule 35.3
states that ˜it is the duty of an expert to help the court™ and ˜this duty overrides
any obligation™ to those instructing him.220 No expert may be called and no
expert evidence may be put in evidence without the court™s permission (CPR
35.4). The court will consider whether an expert™s report is necessary. (The
White Book says: ˜it can be very di¬cult for the parties and their lawyers to antic-
ipate in advance when the court will decide that expert evidence is neces-
sary™.221) The accompanying Practice Direction starts with the statement: ˜Part
35 is intended to limit the use of oral expert evidence to that which is reason-
ably required. In addition, where possible, matters requiring expert evidence
should be dealt with by a single expert™. In fast track cases an expert will only be
directed to attend a hearing if it is necessary in the interests of justice (CPR
35.5). That would not prevent either side from asking the expert to attend but
that might have to be at their expense.
A procedural innovation was that each side can put written questions to the
other side™s expert. If the expert fails to answer such questions, the court can
direct that the expert™s evidence not be admitted or that his fees not be recov-
erable from the other side (CPR 35.6). The court can direct that the evidence
on an issue be given by one expert only (CPR 35.7). If the parties cannot agree
on selecting the single expert, the court can select him from a list prepared by
the parties (CPR 35.7). The fact that the defendant does not object to the
expert proposed and then used by the claimant does not mean that he should
be regarded as an expert who has been jointly instructed whose report is avail-
able to both sides. The claimant retains his privilege regarding the expert™s
report.222
218
Final Report at p. 141, para. 17. In Daniels v. Walker [2000] 1 WLR 1382 the Court of Appeal
(including Lord Woolf) held that the fact that a joint expert had been instructed did not
preclude a party who was dissatis¬ed with the joint expert™s report being allowed to instruct
219
and call his own expert. Final Report at p. 141, para. 20.
220
For cases illustrating the point, see J. Hughes, ˜Expert Evidence: Three Key Lessons from
Recent Case Law™, 153 New Law Journal, 28 February 2003, p. 291.
221
Civil Procedure, 2006, 35.4.1.
222
Carlson v. Townsend [2001] EWCA Civ 511, [2001] 3 All ER 663.
112 Pre-trial civil proceedings


Both sides can instruct the single expert provided they send a copy of the
instructions to the other party (CPR 35.8). However neither can meet with the
expert in the absence of the other.223 The court can limit the amount that can
be paid to the expert (CPR 35.8).224 The expert™s report must state the substance
of all material instructions, whether written or oral, on the basis of which the
report was written (CPR 35.10).225 The expert™s report must state that ˜the opin-
ions I have expressed represent my true and complete professional opinion™.
Where there is more than one expert, the court can direct them to meet to try
to reach agreement, failing which to report as to the nature of their disagree-
ment (CPR 35.12).
In December 2001 the o¬cial Code of Guidance on Expert Evidence was
published after a long gestation period. The Code was not annexed to the
CPR “ though it is included in the White Book at the end of Part 35. In July 2005
the Civil Justice Council launched the Protocol for the Instruction of Experts
to give Evidence in the Civil Courts.226 The Protocol replaced the Code of
Guidance. (It can be accessed on the Website of the Expert Witness Institute “
www.ewi.org.uk “ the law and you.227)
There have been cases where the courts have exerted a new strong discipli-
narian role vis-à-vis experts. In Stevens v. Gullis,228 for instance, the Court of
Appeal dismissed an appeal after the trial judge had refused to allow an expert
witness to be called after he had failed to comply with the requirements of PD35
(which only came into force a month later). Lord Woolf said of the expert that
˜he demonstrated by his conduct that he had no conception of the requirements
placed upon an expert under the CPR™.
The LCD™s August 2002 report on the Woolf reforms229 compared a sample
of 1997 pre-CPR cases with a sample of 2000“01 post-CPR cases. In the 1997
sample, in 8 per cent of the cases an expert had been appointed by one party
only. In the post-CPR sample the proportion (9 per cent) was about the same.
In the 1997 sample, in 12 per cent of cases both parties had appointed experts.

223
Peet v. Mid-Kent Healthcare NHS Trust [2000] EWCA Civ 1703, [2002] 1 WLR 210, [2002] 3
All ER 688.
224
In February 1999 District judge Frenkel wrote: ˜under the present regime, the total cost of
calling two orthopaedic experts can be £2,000™ (149 New Law Journal, 19 February 1999,
p. 254).
225
For a discussion of the problem of the loss of legal privilege in the context of this rule, see
C. Phipps, ˜Being Frank with Experts™, 144 Solicitors™ Journal, 4 February 2000, p. 90.
226
K. Elsmore and C. Langford, ˜A New, Single Protocol “ with Teeth™, 155 New Law Journal, 29
July 2005, p. 1155.
227
The Protocol (para. 7.6) states that expert witnesses may not work on the basis of a fee
contingent on the outcome of the case. The logic behind this has been queried. ˜So, what then,
is the di¬erence between lawyers for whom conditional fees are ethical and expert witnesses
for whom they are not?™ (J. Jacob, Civil Litigation Practice and Procedure in a Shifting Culture,
2001, p. 104).
The launch of the Protocol coincided with the release of the Code of Practice for Experts
(covering Europe) agreed jointly by the Academy of Experts and the Expert Witnesses
228
Institute. [2000] 1 All ER 527.
229
Further Findings: A Continuing Evaluation of the Civil Justice Reforms.
113 Getting evidence from witnesses


In the post-CPR sample the proportion (9 per cent) had gone down. In the 1997
sample there had been no cases of single joint experts. In the post-CPR sample
there was a joint expert in 15 per cent of cases.230
What is striking in these ¬gures is that although single joint experts have clearly
become an established feature of the system, especially in fast track cases, parties
are still being allowed to employ their own experts where the case justi¬es it. As
Sir Louis Blom-Cooper QC, Chairman of the Expert Witness Institute, put it:
The underlying fear within the legal profession that the single joint expert would
be the thin edge of the wedge, inexorably adopting the exclusivity of court-
appointed experts in the European fashion, has distinctly not been realised . . .
Expert witnesses are still called by the respective parties; as such the expert™s
overriding duty to the court, cannot of itself erase the image of partisanship so
redolent of the English mode of civil trial. Thus the reforms in Part 35 do not
substantially detract from, or even seriously impinge upon, the English way of
conducting civil litigation.231
When there is a single joint expert it is usually someone agreed between the
parties. Typically, the claimant™s solicitor puts forward two or three names and
the defendants agree to one. The process of having to get the other side™s consent
to a name obviously promotes the use of experts who have a reputation for being
neutral and fair-minded as opposed to those known to be ¬ercely partisan. In
the research by Goriely et al232 respondents concerned with personal injury liti-
gation were reported as welcoming the fact that experts were now less partisan
and that they were instructed in a more neutral way. The research by Professors
Peysner and Seneviratne came to the same conclusion: ˜the overall e¬ect of [the
Woolf reforms] is that the days of the “hired gun”, the expert generally instructed
by one side only and perceived to be “pro-claimant” or “pro-defendant”, are
largely over and neither practitioners nor judges expressed any nostalgia™.233
However, the single joint expert does not mean that the parties do not also
have their own experts. Preparing e¬ective instructions and written questions
to a single joint expert requires skill in the relevant ¬eld, so the use of ˜shadow™
experts to advise rather than to write reports has increased.234
Sometimes the court, having ¬rst directed that there be a single joint expert,
has agreed to allow a party dissatis¬ed with the joint expert™s report to instruct
a di¬erent expert.235

230
Figure 9, p. 15.
231
˜Experts and Assessors: Past Present and Future™, 21 Civil Justice Quarterly, 2002, p. 341
at 350.
232
More Civil Justice? The impact of the Woolf reforms on pre-action behaviour, 2002.
233
The Management of Civil Cases: the Courts and the Post-Woolf Landscape, DCA Research
Report 9/2005, para. 3.6.
234
D. Hall, ˜Under Scrutiny™, 145 Solicitors™ Journal, 14 December 2001, Supplement, pp. 18“19.
235
Daniels v. Walker [2000] 1 WLR 1382, CA; Cosgrove v. Pattison [2001] CP Rep 68, (2001)
Times, 13 February; cf Popek v. National Westminster Bank Plc [2002] EWCA Civ 42 where the
Court of Appeal upheld the judge™s decision not to allow a claimant™s late application to be
allowed to adduce additional expert evidence to that of the single joint expert.
114 Pre-trial civil proceedings


Where one party is given permission to call an expert and for any reason then
wishes to call a di¬erent expert the court must be asked for permission. In order
to discourage ˜expert shopping™, such permission is likely to be subject to a con-
dition that the ¬rst expert™s report be disclosed to the other side.236 The court
requires that legal professional privilege in respect of the ¬rst report be waived
as a condition of obtaining a second expert opinion. However, this only oper-
ates if the order giving the party permission to call an expert names him. If,
without naming him, it merely states that he may call an expert in a particular
¬eld of expertise, the party does not require the court™s permission to instruct
a second expert and therefore no condition can be imposed.237


6. Pre-trial case management
At the heart of the Woolf reforms was pre-trial case management. Not that the
concept was new. Pre-trial case management was previously achieved by direc-
tions given by the court without a hearing or by some form of pre-trial hearing.
The purpose of pre-trial directions and pre-trial hearings was to prepare the
case for trial in order to reduce cost and delay. A side e¬ect was the promotion
of pre-trial settlement.
In the past there were various kinds of pre-trial hearings in the High Court
and the county court. One was the so-called summons for directions. The
Evershed Committee which reported in 1953 on how to simplify civil proce-
dure, after deliberating for six years, said that the best hope for reducing delays
and costs was a™ robust summons for directions™,238 but this hope was not
realised. The normal summons for directions was a perfunctory a¬air lasting
only a few minutes conducted by clerks in front of the Master.239 In a paper pre-
pared for a Workshop on Civil Procedure in London in 1970, Sir Jack Jacob
wrote: ˜in most personal injury actions the Summons for Directions is a very
mild a¬air and cannot possibly be called robust, since the only order that is
made is the limitation of medical and perhaps other experts, plans and pho-
tographs, and place and mode of trial, and setting down™.
In 1968, the Winn Committee recommended that because the summons for
directions had become a formality, it should be recognised by making the
process automatic.240 Provision should be made for automatic directions
without a summons and without an order. At the time this proposal was not
implemented. In 1979, the Cantley Working Party, taking the same approach,
said: ˜in practice competent solicitors know what they want and agree it in
advance or in chambers and a two minute hearing su¬ces in nearly all personal

236
Beck v. Ministry of Defence [2003] EWCA 1043.
237
Vasiliou v. Hajigeorgiou [2005] EWCA Civ 236, [2005] 3 All ER 17. For a critical commentary,
see the editorial note in Civil Justice Quarterly, 2005, pp. 293“7.
238
Final Report of the Committee on Supreme Court Practice and Procedure, 1953, Cmnd. 8878.
239
Master Diamond, ˜The Summons for Directions™, 75 Law Quarterly Review, 1959, p. 43.
240
Paragraph 352.
115 Pre-trial case management


injury cases . . . In fact the two minute hearing to obtain the Master™s order on
an agreed summons is in most cases quite unnecessary™.241
The proposal that there should be automatic directions unless the parties
asked for something di¬erent was implemented for High Court cases in 1980 in
RSC Order 25, r. 8, with regard to personal injury actions. A similar change was
made in Chancery cases in 1982.
The Civil Justice Review Body in its Final Report in 1988 recommended that
standard directions should be devised for all cases where such directions were
appropriate. The parties should be free to apply to the court for additional or
di¬erent directions or for a general stock-taking. The court should be entitled
to initiate a general stock-taking on any hearing whether or not it was applied
for by either of the parties.242
In cases where there were no automatic directions it should continue to be
possible to have a summons for directions or, in the county courts, a pre-trial
hearing.


The Woolf reforms
Lord Woolf ™s Interim Report and the January 1996 consultation paper for fast
track cases envisaged a ˜directions hearings™. The January 1996 consultation
paper stated that there would be ˜suitably tailored standard directions™ linked
to the timetable for the case. District judges would thus see all defences when
¬led, decide venue, allocate cases to the appropriate track, give the necessary
directions, set a timetable and allocate a hearing week.243 Other options at the
directions hearing would be an application for summary disposal, striking out
of the claim if it had no realistic chance of success, or because no valid defence
was shown (previously Orders 13 and 14).
The Woolf ˜directions hearing™ sounded remarkably like the ˜robust sum-
mons for directions™ envisaged in 1953 by the Evershed Committee!
The 1999 rules provide for directions to be given by the court as part of its
case management functions “ in small claims and fast track cases usually
without any actual hearing, on the basis of the allocation questionnaire.

Small claims
In small claims cases, after allocation, the court gives ˜standard directions™ or
˜special directions™ and ¬xes a date for the ¬nal hearing (CPR 27.4). ˜Standard
directions™ are de¬ned to mean a direction that each party shall at least fourteen
days before the date ¬xed for the hearing, ¬le and serve on the other party copies
of all documents (including any expert report) on which he intends to rely at the
hearing (CPR 27.4). In road accident cases these may include witness statements,
invoices and estimates for repairs, documents relating to loss of earnings, sketch

241
Report of the Personal Injuries Litigation Procedure Working Party, 1979, Cmnd. 7476, para. 33.
242 243
Paragraph 254. At p. 14, para. 59.
116 Pre-trial civil proceedings


plans and photographs. Before the hearing the parties should try to agree the
cost of repairs and other losses. The accompanying Practice Direction gives
similar indications with regard to building disputes, landlords™ claims for
repairs, holiday and wedding claims. ˜Special directions™ are directions in addi-
tion to standard directions.244

Fast track
Directions in fast track cases are given at two stages. One is at allocation. The other
is on the ¬ling of the listing questionnaire. A directions hearing is held ˜if neces-
sary and desirable™ (PD 28, para. 2.3). The directions ¬x a trial date not more than
thirty weeks later or ¬x a period, not exceeding three weeks, within which the trial
is to take place (CPR 28.2). An appendix to Part 28 sets out forms of directions
regarding requests for further information, disclosure of documents, witness
statements, expert evidence, ¬ling of documents with the listing questionnaire,
the date for the ¬ling of the listing questionnaire and the documents that must be
¬led at that time. The Practice Direction states that a typical timetable from allo-
cation might be: disclosure (four weeks), exchange of witness statement (ten
weeks), exchange of experts™ reports (fourteen weeks), sending of listing ques-
tionnaire by the court (twenty weeks), ¬ling of listing questionnaire (twenty-two
weeks) and hearing (thirty weeks). On listing, the court con¬rms the trial date,
speci¬es the place of trial and gives a time estimate. So far as possible, the court™s
further directions should be based on prior agreement between the parties.
The style of case management envisaged for the fast track was outlined by
Lord Woolf in his Interim Report:
The procedure I have outlined above envisages a pro-active role for the District
judge in communicating with the parties or, more often, their legal advisers by
telephone,245 letter or fax . . . Where appropriate this should include tripartite
discussions between the judge and the parties by means of a telephone confer-
ence facility . . . The fast track procedure is designed to dispense with any
procedures which create uncertainty or unnecessary preparation or generate
additional cost. Although there will be no case management conference or pre-
trial review, the District judge will be able to ensure that the case is reasonably
¬t for the hearing by monitoring the checklist and the documentation. To
enable District judges to ful¬l this role e¬ectively, it is essential that they are pro-
vided with appropriate information technology.246

Multi-track
Directions for multi-track cases can be given at allocation, at a case manage-
ment conference, at a pre-trial review or at listing. On the allocation of a claim
to the multi-track the court considers whether it is necessary or desirable to
hold a case management conference straight away or whether it is appropriate

244
For examples, see CPR, PD, Form F.
245
As was seen above (pp. 79“80) research indicates that telephone conferences are now normal
246
(ed.) At p. 44, paras 14“15.
117 Pre-trial case management


instead to give directions on its own initiative. The directions should, so far as
is appropriate, be based on agreement between the parties. To obtain the court™s
approval, agreed directions must set out a timetable by reference to calendar
dates for the taking of steps for the preparation of the case. The court will not
approve the timetable if it proposes a date for a case management conference
that is later than is reasonably necessary. Agreed directions should also deal with
such matters as ¬ling of any reply or amended statement of case, dates for the
requests for further information, the disclosure of evidence, the use of a single
joint expert or the exchange of expert reports. If the court gives directions on
its own initiative, its general approach will be based on standard disclosure, dis-
closure of witness statements by simultaneous exchange and a single joint
expert (˜unless there is good reason not to do so™). If directions are not agreed
and the court cannot give them on its own initiative, it will direct a case man-
agement conference to be listed (PD 29).247


Case management conferences, pre-trial reviews, listing hearings
Lord Woolf ™s report envisaged an early case management conference sometimes
for fast track cases and usually for multi-track cases. Pre-trial reviews nearer the
time of the hearing, he suggested, would be usual in multi-track cases. These
recommendations are re¬‚ected in the rules. Where one party has ¬led a listing
questionnaire but the other has not, there will also be a listing hearing (PD 29,
para. 8.3(2)). The court will ¬x the trial date or the period in which the trial is
to take place as soon as practicable (CPR 29.2(2)). Postponement of the trial
will not occur unless it is unavoidable. (˜Litigants and lawyers must be in no
doubt that the court will regard the postponement of a trial as an order of the
last resort™ (PD 29, para. 7.4(6).) The legal representative attending such a
hearing must be personally familiar with the case and have authority to deal
with issues that arise. Failure to comply will be punished by a wasted costs order
(PD 29, para. 5.2(3)). The lay party may also be required to attend (r. 29.3). (In
practice, this very rarely occurs.)
The Practice Direction on the multi-track covers a great variety of issues. The
topics to be considered at a case management conference will include whether
the case is clear, what disclosure of documents is necessary, what factual or
expert evidence should be disclosed, what arrangements should be made for the

247
For an early approving assessment of case management, see Mr Justice Lightman, ˜The Case
for Judicial Intervention™, 149 New Law Journal, 3 December 1999, p. 1819. For an appraisal of
the signi¬cance of the reforms, see N. Andrews, ˜A New Civil Procedural Code for England “
Party Control “Going, Going, Gone”™, 19 Civil Justice Quarterly, 2000, pp. 19“38. For a report
on the range of judicial views regarding case management, see J. Plotniko¬ and R. Woolfson,
Judges™ Case Management Perspectives: the View of Opinion Formers and Case Managers, LCD
3/2002 “ www.dca.gov.uk/ researchintrofr.
For an assessment of case management based on interviews with judges, court o¬cials and
practitioners in 2003 and 2004, see M. Peysner and M. Seneviratne, The Management of Civil
Cases: the Courts and the Post-Woolf Landscape, DCA Research Report 9/2005.
118 Pre-trial civil proceedings


putting of questions to experts, whether there should be a split trial or a trial of
preliminary issues. The court will set a timetable for the steps to be taken. Case
management is to be tailored ¬‚exibly to the needs of the case. It is generally
conducted by a Master, District judge or Circuit judge. In complex cases it is
conducted by the trial judge.248
In small claims cases there is normally no pre-trial hearings, but the court can
hold a preliminary hearing where it considers that special directions are needed
to ensure a fair hearing and it is necessary to get a party to court to ensure that
he understands what he must do to comply with the special directions or to
enable the court to dispose of the claim on the basis that one party has no real
prospect of success (PD 27, para. 27.6). If all parties agree, the preliminary
hearing can be treated as the ¬nal hearing.

Utility of pre-trial hearing
It is common sense to suppose that a pre-trial hearing will reduce cost and
delay “ but there is empirical evidence suggesting that this is not necessarily the
case. The procedure for small claims cases introduced in 1973 originally
included a pre-trial review but this was dropped after it was found that it was
more of a nuisance than a help. The preliminary hearing concept also had a
somewhat unsuccessful test in the Family Division. In 1979 it was announced
that the ˜pre-trial review™ concept would in future be applied to contested mat-
rimonial causes in the Family Division.249 The Practice Direction stated that ˜the
prime objective behind the pre-trial review procedure is to enable the registrar
to ascertain the true state of the case and to give such directions as are necessary
for its just, expeditious and economic disposal™. In practice, where it had been
tried experimentally it had been found that ˜under the registrar™s guidance the
parties are often able to compose their di¬erences, or to drop insubstantial
charges and defences, and to concentrate on the main issues in dispute™. This
scheme did not, however, prove successful. It ran as an experiment for fourteen
months before being cancelled by a further Practice Direction in June 1981.250
Research revealed that the reason for the failure of the scheme was that it did
not su¬ciently achieve the objectives of securing more settlements or even of
clarifying issues for the trial.
A study of matched samples in 3,000 personal injury cases in New Jersey
found that while pre-trial conferences improved preparation, they did not
shorten trials. The researchers concluded that they therefore lowered rather
than raised the e¬ciency of the system by absorbing a great deal of court time
without any compensating savings.251

248
See Morris v. Bank of America National Trust [2000] 1 All ER 954, CA.
249 250
Practice Direction [1979] 1 All ER 112. See New Law Journal, 1981, p. 623.
251
M. Rosenberg, The Pre-trial Conference and E¬ective Justice (Columbia University Press,
1964) p. 68.
See also the study of serious fraud cases done by Professor M. Levi for the Runciman Royal
Commission on Criminal Justice. With regard to pre-trial reviews, Levi said: ˜none of the
119 Pre-trial case management


There are no empirical data showing the impact of pre-trial case manage-
ment since the introduction of the Woolf reforms.


What to do about delay
The problem of what to do about delay in civil litigation is common to all legal
systems.
The common law approach The traditional approach of the English courts
was relatively relaxed. In Allen v. Sir Alfred McAlpine & Sons Ltd252 the Court of
Appeal held that the power to dismiss for lack of prosecution of the case should
only be exercised where the court was satis¬ed either (1) that the default had
been intentional and contumacious, or conduct amounting to an abuse of the
court or (2) that there had been inordinate and inexcusable delay by the
plainti¬ or his lawyers and that such delay would give rise to a substantial risk
that it was not possible to have a fair trial of the issues in the action or it had
caused or was likely to cause serious prejudice to the defendant. These princi-
ples were approved by the House of Lords in Birkett v. James.253 Moreover, the
Law Lords said there that delay before issuing the writ within the limitation
period was irrelevant. The delay under consideration must have occurred since
the writ was issued, though it did accept that if he had delayed at ¬rst, it was
incumbent on the plainti¬ to move with all due speed after the writ was issued,
but at that time the applicant had to be able to establish that the delay caused
him serious prejudice. An adverse e¬ect on the system as a whole was not
su¬cient.
Twenty years later in Arbuthnot Latham Bank Ltd v. Trafalgar Holdings
Ltd,254 decided in the countdown to implementation of the CPR, the attitude
was very di¬erent. The Master of the Rolls, Lord Woolf, giving the Court of
Appeal™s decision, said that in Birkett v. James the broader consequences of
inordinate delay was not a consideration which was in issue, but in the new
era of managed litigation it was going to be a consideration of increasing
signi¬cance.
Litigants and their legal advisers must therefore recognise that any delay
which occurs from now on will be assessed not only from the point of view of
the prejudice caused to the particular litigants whose case it is, but also in rela-
tion to the e¬ect it can have on other litigants who are wishing to have their cases

defence lawyers I interviewed argued that pre-trial reviews had any signi¬cant e¬ect on the
development of the case™ (The Investigation, Prosecution and Trial of Serious Fraud, Royal
Commission on Criminal Justice, Research Study No. 14, 1993, p. 105).
See, to the same general e¬ect, the Crown Court Study. Judges in Crown Court cases were
asked whether they thought the pre-trial review had saved much time and money at trial.
Two-thirds (66 per cent) said no, a quarter (24 per cent) said a little and 8 per cent said a
fair amount of time had been saved. Only 1 per cent said a great deal of time had been saved
(M. Zander and P. Henderson, Crown Court Study, Royal Commission on Criminal Justice,
252
Research Study No. 19, 1993, section 2.8.9). [1968] 2 QB 229.
253 254
[1978] AC 297. [1998] 2 All ER 181.
120 Pre-trial civil proceedings


heard and the prejudice which is caused to the due administration of civil
justice.255

The systems approach of official committees
Since the Second World War the problem of delay was considered by no fewer
than six committees: the Evershed Committee (1953), the Winn Committee
(1968), the Cantley Committee (1979), the Civil Justice Review (1986“89), the
Heilbron-Hodge Committee (1993) and Lord Woolf (1995“96).
The Evershed Committee256 as has been seen, placed its faith in ˜the robust
summons for directions™, but this totally failed. The summons for directions
never became robust.
The Winn Committee257 thought that delay was ˜a very great reproach™. It
proposed various remedies. One was interest on damages “ to encourage insur-
ance companies to pay up quicker. This was implemented in the Administration
of Justice Act 1969, s. 22. Another was the power to order interim payment of
part of the damages in a case where it was reasonably clear that damages would
ultimately be awarded. This was implemented in the Administration of Justice
Act 1969, s. 20. Thirdly, the Committee thought delays should be reduced by
keeping the procedure on tighter reins so far as time limits were concerned. The
need, it thought, was to increase the penalties for delay.
The Cantley Committee258 did not think that the problem of delay was so
serious. Generally the system worked tolerably well:
8. The basic principle of litigation as at present conducted in our courts is that
the litigation is the litigation of the parties: the court is there to assist the parties
and ¬nally to resolve the dispute between the parties if asked to do so, but the
court does not intervene unless asked to do so by the parties. Some of the weak-
nesses of our system derive from this fact but so do many of its strengths and
given a competent legal profession, which, with some exceptions, we have, one
should not lightly interfere with this method of conducting litigation and
encourage an undue degree of court intervention if to do so would lose the
advantages of economy and ¬‚exibility which our system brings.
Most accidents which led to claims, it said, did not lead to writs and most writs
did not lead to trial and judgment. These cases were settled ˜and settlement is
an essential ingredient in our system of disposing of actions™ (para. 9).
Moreover, a delay which enabled and encouraged the parties to settle their
dispute on reasonable terms was not an undue delay and ˜any solution which
brought cases to the point of trial more quickly but which brought more cases
to trial than at present would have the double disadvantage of being more costly


255
For a discussion of the case, see I.R. Scott, ˜Disregard of Procedural Time Limits as Abuse of
Process™, 17 Civil Justice Quarterly, 1998, pp. 83“7.
256
Final Report on Supreme Court Practice, 1953, Cmnd. 8878.
257
Committee on Personal Injuries Litigation, 1968, Cmnd. 369.
258
Report of the Personal Injuries Litigation Procedure Working Party, 1979, Cmnd. 7476.
121 Pre-trial case management


for those cases which might otherwise have settled and, by bringing more cases
to the point of trial, delay the trial itself ™ (para. 9).
However, Cantley agreed that there were some cases of egregious delay.
Having canvassed various solutions to this issue, the one it most favoured was
that if within eighteen months after the issue of a writ in a personal injury case
the action had not been set down for trial, the plaintiªs solicitor should be
required to report to the court as to what stage the proceedings had reached. If
appropriate, the court could then issue a summons for the purpose of giving
directions, but this sensible proposal foundered because at that date “ and for
many years after “ the court system had no way of identifying the cases in which
a case had not been set down eighteen months after the issue of the writ.
The approach to the problem of delay of the Civil Justice Review259 was very
di¬erent from that of the Cantley Committee. Where Cantley emphasised that
civil litigation was essentially a private matter between the parties, the Civil
Justice Review thought of it rather as a matter of public concern:
• It caused personal stress, anxiety and ¬nancial hardship to plainti¬s and their
families.
• These pressures sapped the morale and determination of plainti¬s, often
resulting in acceptance of low settlement o¬ers.
• It reduced the availability of evidence and eroded the reliability of the evi-
dence which was available.
• It led to ine¬cient business dealing with ¬les opened and reopened over
months and years.
• Compensation was delayed until long after it was most needed.
• It lowered public estimation for the legal system.260
The Civil Justice Review proposed a variety of remedies for delay. They included:
• Reducing the time limit for bringing a personal injuries action from three
years to one year. [Not adopted.]
• Requiring solicitors handling personal injury cases to have a specialist quali-
¬cation. [Not adopted.]
• Obliging a solicitor to start proceedings within a ¬xed period of his ¬rst
meeting with his client. [Not adopted.]
• A system of paper adjudication for cases involving amounts of under £5,000.
[Not adopted.]
• Laying down and enforcing a strict timetable for larger cases. [Adopted ten
years later for Lord Woolf ™s fast track.]
• Requiring litigants personally to sign applications for adjournments. [Not
adopted.]

259
The Review produced ¬ve consultation papers on Personal Injuries (1986), Small Claims
(1986), Commercial Court (1986), Enforcement of Debt (1987) and Housing Cases (1987). Its
¬nal report, Report of the Review Body on Civil Justice, Cm. 394, was published in 1988.
260
Civil Justice Review, The Personal Injuries Consultation Paper, 1986, para. 86.
122 Pre-trial civil proceedings


• Giving court administrators targets for trials. [Adopted in Lord Woolf ™s fast
track.]
• The court should control the time taken in litigation. [Adopted by Lord
Woolf.]
• Implementing the proposal made by Cantley that where a case had not been
set down for trial within a stated time from the issue of the writ the lawyers
should be asked to report the reasons. There should be di¬erent periods for
di¬erent kinds of cases. [Not adopted.]
• Better court management information.
The net impact of the Civil Justice Reform project in terms of reducing delay
was therefore negligible.
In October 1990 a new rule was introduced in the county court without prior
consultation or even warning “ County Court Rules Order 17, r. 11 “ providing
for automatic striking out of an action if a request for a hearing had not been
made within the time limit. The time limit was six months from the close of
pleadings. The pleadings were deemed to be closed fourteen days after delivery
of a defence or twenty-eight days after the delivery of a counterclaim. Unless the
court had already ¬xed a hearing, the action was automatically struck out if no
request to ¬x a hearing was made within ¬fteen months of the close of plead-
ings. The rule applied to any default or ¬xed date action, i.e. one begun by
plaint. This meant most actions.
The Civil Justice Review envisaged that the court would send out a warning
notice but this did not happen “ not least because the court lacked the technol-
ogy to discover which cases were at risk of being struck out. Practitioners there-
fore had to watch the diary to make sure that they did not fall foul of the rule.
The court had a discretion to extend time limits retrospectively but in Rastin
v. British Steel Plc261 the Court of Appeal held that the discretion should be exer-
cised sparingly. The plainti¬ had to be able to show that he had prosecuted the
case with reasonable diligence.
The automatic strike out rule resulted in thousands of cases being struck
out.262 It generated a ¬‚ood of satellite litigation which in the end required
drastic action by the Court of Appeal. In April and May 1997 three of its
members (Lord Justices Saville, Brooke and Waller) in a seven-week period
decided more than a hundred appeals and applications arising out of Order 17,
r. 11.263 This stopped the ¬‚ood of cases to the Court of Appeal. A year later, in
May 1998, Lord Justice Brooke said that there was only one case involving Order

261
[1994] 2 All ER 641.
262
According to Judge Greenslade there had been no fewer than 34,000 cases where the
automatic striking out rule had been applied “ Reform of Civil Procedure “ Essays
on Access to Justice (ed. A.A.S. Zuckerman and R. Cranston, Clarendon Press, 1995)
p. 122.
263
The decisions, which take seventy pages in the law reports, were reported in Bannister v.
SGB Plc [1997] 4 All ER 129 and Greig Middleton & Co Ltd v. Denderowitz, Olaleye-Oruene
v. London Guildhall University [1997] 4 All ER 181.
123 Pre-trial case management


17, r. 11 awaiting decision.264 However, the automatic strike out rule had been
a catastrophic failure.
The Heilbron-Hodge Report265 was produced by a committee established by
the Bar and the Law Society. Surprisingly, given that it was a committee of prac-
titioners, one of the main villains with regard to delay, it thought, were lawyers:
˜progress of actions lies with the parties and their lawyers rather than the courts.
This is often a recipe for unacceptable and otherwise avoidable delay as well as
unnecessary cost™.266 Heilbron-Hodge called for ˜a radical reappraisal of the
approach to civil litigation from all its participants™. ˜It is time for many of the
deeply ingrained traditions to be swept away and for their replacement by prag-
matic and modern attitudes and ideas. In essence what is needed is a change in
culture™.267
This allegedly much needed new ethos in the civil courts was embodied in ten
basic principles of reform enunciated by Heilbron-Hodge. One was ˜litigants
and their lawyers need to have imposed upon them, within sensible procedural
time frames, an obligation to prosecute and defend their proceedings with
e¬ciency and despatch. Therefore, once the process of the court is invoked, the
court should have a more active and responsible role over the progress and
conduct of cases™.268 Judges should adopt a more interventionist role ˜to ensure
that issues are limited, delays are reduced and court time is not wasted™.269
Under the heading of ˜Court Control of Litigation™ the committee recom-
mended that the issue of all originating processes should be computerised. Each
stage in an action should be computer monitored, triggering ˜prompts™ where
the time prescribed by the procedural rules had expired without any extension
of time being ordered or mutually agreed. The court should ensure that exten-
sions of time agreed between the parties should only rarely be allowed beyond
set limits.270
The automatic striking out rule introduced by Order 17, r. 11 should be
applied to the High Court. (Heilbron-Hodge seemed unconcerned about the
grave problems that the automatic strike out rule had caused.)
The proposed system of court control of litigation, the committee said,
should incorporate powers to dismiss claims which were not expeditiously
prosecuted. The existing rules on dismissal for want of prosecution would then
become redundant.271
Pending the introduction of such a system the decision in Birkett v. James272
should be reversed. (As has been seen, in that decision the House of Lords
held that delay before issuing a writ did not count. Even if the claim had previ-
ously been dismissed for want of prosecution, if the plainti¬ could issue a writ
within the time limit, the action should not be dismissed save in exceptional
circumstances.)
264
Cockerill v. Tambrands Ltd [1998] 3 All ER 97 at 99.
265 266
Civil Justice on Trial “ the Case for Change, 1992. At p. 5, para. 1.7(iv).
267 268 269
At p. 6, para. 1.8. At p. 6, para. 1.8(ii). At p. 6, para. 1.8(iv).
270 271 272
At p. 34, para. 4.11. At p. 39, para. 4.30(i) [1978] AC 297.
124 Pre-trial civil proceedings


Within a short period of setting down an action a ˜pre-trial review™ should be
¬xed. This should be heard by a High Court judge and in some long and
complex cases by the trial judge. The matters to be dealt with would include
identi¬cation of all witnesses and the extent of documentation to be presented
at the trial, estimates of the length of trial, the agreement of non-contentious
facts and the ¬xing of an approximate trial date.273
It is obvious that Heilbron-Hodge paved the way for the Woolf Report.274
In January 1994, the ¬rm KPMG Peat Marwick published the results of a
study into the causes of delay in the High Court and county courts. The study
was commissioned by the Lord Chancellor™s Department in July 1993. The
research was based on court records of a small sample of personal injury cases
and interviews with persons involved in the cases. The conclusion was that there
were many causes of delay. They included: (1) the anatomy of the case itself; (2)
delay caused by the parties for some of which they could be blamed and some
of which was not their fault; (3) delay caused by the lawyers, especially solici-
tors, again, partly their fault, partly not; (4) external factors such as the di¬culty
of getting reports from medical and other experts; (5) the attitudes of the judi-
ciary; (6) court procedures; and (7) court administration and especially prob-
lems created by listing.
The report stated that the two factors that gave rise to the most signi¬cant
delay were inexperience or ine¬ciency in the handling of cases by the parties™
solicitors and time taken to obtain medical or other expert reports.

The 1995 Practice Direction
In 1995, while Lord Woolf was preparing his Interim Report, the Lord Chief
Justice, Lord Taylor, unexpectedly entered the fray with a strongly worded
Practice Direction. It was headed ˜Civil Litigation “ Case Management™ and it
took e¬ect in the Queen™s Bench Division and the Chancery Division:

Practice Note (Civil Litigation “ Case Management) [1995] 1 All ER 385
The paramount importance of reducing the cost and delay of civil litigation
makes it necessary for judges sitting at ¬rst instance to assert greater control over
the preparation for and conduct of hearings than has hitherto been customary.
Failure by practitioners to conduct cases economically will be visited by appro-
priate orders for costs, including wasted costs orders.
It then set out a series of new rules. The court would exercise its powers to limit
discovery, the length of oral submissions, the time allowed for the examination
and cross-examination of witnesses, the issues to be addressed and reading
aloud from authorities. Unless otherwise ordered, witness statements would
stand as the evidence-in-chief of the witness. The rules on pleadings would be

273
At pp. 40“1, para. 4.33(iii).
274
For a descriptive note about the Heilbron-Hodge report, see 14 Civil Justice Quarterly, January
1994, pp. 11“14.
125 Pre-trial case management


strictly enforced. Parties should use their best endeavours to identify and limit
the issues. Rules about court bundles would be strictly enforced. In cases lasting
more than ten days, a pre-trial review would be normal. Opening speeches
should be succinct. The rule requiring skeleton arguments summarising sub-
missions to be sent to the other side and to the court must be adhered to. The
pre-trial checklist required the lawyers to state whether alternative dispute res-
olution (ADR) had been considered.275
From this history it is clear that when Lord Woolf was working on his Report
in 1994“95 the conceptual basis for his eventual recommendations had already
been laid in the reports of the Civil Justice Review, the Heilbron-Hodge
Committee and the 1995 Practice Directions. Lord Woolf ™s analysis of the
problem was unique, however, in that in his Interim Report he laid all the blame
for the ills of the system on one cause “ the uncontrolled nature of the litigation
process.276 ˜In particular there is no clear judicial responsibility for managing
individual cases or for the overall administration of the civil courts™.277
The reason suggested was that without e¬ective judicial control the adversar-
ial process was ˜likely to encourage an adversarial culture and to degenerate into
an environment in which the litigation process is too often seen as a battle¬eld
where no rules apply™. The consequence was that expense was often excessive,
disproportionate and unpredictable and delay was unreasonable. This was
because the conduct, pace and extent of litigation were left almost completely to
the parties. There was no e¬ective control of their worst excesses.278

The Woolf reforms
As has been seen, the remedy prescribed by Lord Woolf was court control. Thus
the ¬rst of the 124 recommendations in his Interim Report was: ˜there should be
a fundamental transfer in the responsibility for the management of civil litigation
from litigants and their legal advisers to the courts™.279 Apart from case manage-
ment, the other chief remedy for delay in the Woolf reforms was the strict
timetabling of fast track cases with a trial date ¬xed at a relatively early stage. (In
practice the court generally ¬xes a ˜trial window™ of one, two or three weeks rather
than give an actual date.) The White Book states: ˜early ¬xing of the trial date or
“trial window” “ and insisting upon it “ is of the essence of the fast track™.280
CPR 28.2 states that when the court allocates a case to the fast track, the court
will give directions for the management of the case and set a timetable. ˜The
standard period between the giving of directions and the trial will be not more
than thirty weeks™ (CPR 28.2(4)).
The LCD™s August 2000 report on the Woolf reforms had several pages of
¬gures and graphs showing the time from issue to hearing in the years 1994 to

275
Six days later a similar Practice Direction was issued by the President of the Family Division “
[1995] 1 All ER 586.
276
There was no reference in his report to the more nuanced view of delay in the report by
277 278
KPMG Peat Marwick. Interim Report at p. 7, para. 1. Ibid at p. 7, para. 5.
279 280
Ibid at p. 223. Civil Procedure, 2006, para. 28.2.3.
126 Pre-trial civil proceedings


late 2001 based on data collected by the Court Service.281 The ¬gures provided
some evidence that delay in multi-track and fast track cases had decreased:
˜average time from issue to trial was lower post-CPR; 498 days in 2000“01 fol-
lowing a rise pre-CPR from 546 days in March 1994 to 639 days in September
1997 . . . The decline in average time from issue to trial between 1997 and
2000“01 was spread across cases regardless of type or value™.282
The report by Goriely, Moorhead and Abrams for the Law Society and the
Civil Justice Council283 also had information on the length of time from issue
to settlement, but since their ¬gures were based on comparison of the solicitors™
¬les for pre-CPR and post-CPR personal injury cases, the researchers were also
able to take into account pre-issue work. This is critical for any proper evalua-
tion of the e¬ect of the Woolf reforms. The research was conducted between
twenty and twenty-eight months after the introduction of the Woolf reforms.
It therefore only included small simple cases normally concluded within two
years. The research measured the total time taken from the solicitor ¬rst receiv-
ing instructions to the conclusion of the matter.
This showed that the overall time had remained much the same. Both before
and after the reforms, the average standard fast track case took thirteen months
to conclude. This was true whether one took the mean or the median ¬gure.284
The early stages of a case had become slower. It now took longer to write the
¬rst letter of claim. (The median number of days pre-Woolf was thirteen and
post-Woolf was thirty-six.285) Equally it took longer to instruct a medical
expert, no doubt because the two sides had to try to agree on a name. (The
median number of days from ¬rst instruction to medical instruction had risen
from sixty-seven days pre-Woolf to 113 days post-Woolf.286) There had been a
slight increase in the delay before receipt of the medical report. (From a median
of sixty-four days to eighty-three days.287)
By contrast, the later stages had become quicker. Once a medical report had
been received, settlements were arrived at more quickly.288
However, overall the delays were unchanged. The speeding up of one part was
cancelled by the slowing down of the other.
There are no further empirical data regarding delay as a result of the Woolf
reforms.


American research on the effects of case management
A few months after Lord Woolf published his Final Report, the Institute of Civil
Justice at the Rand Corporation in California published a massive study of the
e¬ect of judicial case management in the United States. The study was based on

281
Emerging Findings, pp. 20“3.
282
Paragraph 6.4. The ¬gures for small claims showed ¬‚uctuations “ see Figure 12, p. 22.
283
More Civil Justice? The Impact of the Woolf Reforms on Pre-action Behaviour, 2002.
284 285 286 287
Ibid at p. 171. Ibid at p. 70. Ibid at p. 131. Ibid at p. 132.
288
Ibid at p. 171.
127 Pre-trial case management


a ¬ve-year survey of 10,000 cases in twenty federal courts drawn from sixteen
states. The object was to investigate the impact of procedural reforms intro-
duced under the Civil Justice Reform Act 1990. They included di¬erential case
management for di¬erent tracks, early judicial management, monitoring and
control of complex cases.
The results, to say the least, were discouraging. The package of reforms as
implemented, it was found, ˜had little e¬ect on time disposition, litigation costs,
and attorney satisfaction and views of the fairness of case management™.289 The
reason was that whereas some of the changes introduced had a bene¬cial e¬ect,
these were cancelled by others that had an adverse e¬ect. In particular, ˜early
case management is associated with signi¬cantly increased costs to litigants, as
measured by attorney work hours™.290 The Rand Report explained that case
management tends to increase rather than reduce costs because it generates
more work by lawyers: ˜lawyer work may increase as a result of early manage-
ment because lawyers need to respond to a court™s management “ for example,
talking to the litigant and to the other lawyers in advance of a conference with
the judge, travelling and spending time at the courthouse, meeting with the
judge, and updating the ¬le after conference™.
In addition, once judicial case management has begun, a discovery cut-o¬
date has usually been established and attorneys may feel an obligation to begin
discovery.291 Doing so, the report said, ˜could shorten time to disposition, but it
may also increase lawyer work hours on cases that were about to settle when the
judges began early management™.292 Experiments were conducted to see
whether it made any di¬erence if early case management was applied somewhat
earlier or later. It did not. Re¬‚ecting on this, the report said: ˜this ¬nding sug-
gests that the fact (sic) of management adds to the lawyer work hours, not the
“earliness” of the management™ (p. 14). But of course the earlier the case man-
agement starts, the more cases are brought within its scope: ˜starting earlier
means that more cases would be managed because more cases are still open, so
more cases would incur the predicted increase in lawyer work hours. Early man-
agement involves a trade-o¬ between shortened time to disposition and
increased lawyer work hours™.293 (There was no sign in Lord Woolf ™s two reports
that this basic point had been absorbed.)
With regard to delay, the Rand study found that ˜what judges do to manage
cases matters™. ˜Early judicial case management, setting the trial schedule early,
shortened time to discovery cut-o¬, and having litigants at or available for set-
tlement conferences are associated with a signi¬cantly reduced time to disposi-
tion™ (p. 1). Setting an early trial date was said to be ˜the most important
component of early management™ (p. 14). No other aspect of early judicial

289
At p. 1. The quotations here are from the executive summary of the study, J.S. Kakalik et al,
Just, Speedy and Inexpensive? An Evaluation of Judicial Case Management under the Civil Justice
Reform Act, 1996. The results of the study were the subject of an article by the writer “ New
Law Journal, 7 March 1997, p. 353. See also the writer™s postscript “ 147 New Law Journal, 11
290 291 292 293
April 1997, p. 539. At pp. 1“2. At p. 14. At p. 14. Ibid.
128 Pre-trial civil proceedings


management had a consistently signi¬cant e¬ect on time to disposition, costs
or attorney™s satisfaction or views of fairness.
On the US approach to case management and delay see J. Plotniko¬, ˜Judges
as Case Managers™, 4 Civil Justice Quarterly, 1985, pp. 102“11 and ˜Case Control
as Social Policy: Civil Case Management Legislation in the United States™, 11
Civil Justice Quarterly, 1991, pp. 230“45. For an overall view by an American
expert on the problem of delay see G. Hazard, ˜Court Delay: Toward New
Premises™, 5 Civil Justice Quarterly, 1986, p. 236; see also P. A. Sallman,
˜Observations on Judicial Participation in Case¬‚ow Management™, 8 Civil
Justice Quarterly, 1989, pp. 129“51.
For comments by American scholars on the ˜managerial judging™ proposals
in Lord Woolf ™s report see R. Marcus, ˜D©ja Vu All Over Again™ in Reform of Civil
Procedure “ Essays on Access to Justice (eds. A.A.S. Zuckerman and R. Cranston,
Clarendon, 1995) pp. 219“43 and S. Issachoro¬, ˜Too Much Lawyering, Too
Little Law™, ibid, pp. 245“51.
For a description of the Australian approach to case management see P.
McManus, ˜Case Management in the Family Court of Australia™, 10 Civil Justice
Quarterly, July 1990, pp. 280“99 and B.C. Cairns, ˜Managing Civil Litigation:
An Australian Adaptation of American Experience™, 14 Civil Justice Quarterly,
January 1994, p. 67.


Sanctions and the new rules
In his Final Report Lord Woolf devoted a whole chapter to sanctions. It started:
When considering the problems facing civil justice today I argued in chapter 3
of my Interim Report that the existing rules of court were being ¬‚outed on a vast
scale. Timetables are not adhered to and other orders are not complied with if
it does not suit the parties to do so. Orders for costs which do not apply imme-
diately have proved to be an ine¬ective sanction and do nothing to deter parties
from ignoring the court™s directions. There was overwhelming support from all
sides for e¬ective, appropriate and fair sanctions.294
Lord Woolf said he would stress four important principles:
(a) The primary aim of sanctions is prevention, not punishment. (b) It should
be for the rules themselves in the ¬rst instance to provide an e¬ective debarring
order where there has been a breach, for example that a party may not use evi-
dence which he has not disclosed. (c) All directions orders should in any event
include an automatic sanction for non-compliance unless an extension of time
has been obtained prospectively. (d) The onus should be on the defaulter to
apply for relief, not on the other party to seek a penalty.295
Striking out a claim or defence was a draconian sanction. ˜Nonetheless, where
parties do fail without reasonable excuse to comply with the court™s directions,

294 295
Final Report at p. 72, paras. 1 and 2. Ibid at p. 72, para. 4.
129 Pre-trial case management


particularly where they do so more than once, the court must be willing to
exercise appropriate discipline over them™.296 Costs orders “ to be paid immedi-
ately “ also had ˜an important part to play™,297 but parties might think a costs
order ˜a price worth paying for the delay and inconvenience which their action
causes the other party™.298 It was essential that ˜case management itself, and
other sanctions, should play their part in suppressing misbehaviour™.299
Lord Woolf conceded that there should be a limited right to apply for relief
from a sanction but the onus should be on the defaulter to apply, not on the
other party to enforce the sanction.300 Relief should be given on the basis of the
test in Rastin v. British Steel Plc301 where the court was satis¬ed that the breach
was not intentional, that there had been substantial compliance with other
directions and that there was a good explanation.
Lord Woolf said that to a large extent the e¬ectiveness of sanctions would
revolve around judicial attitudes. (˜There is no doubt that some judges at ¬rst
instance, especially Masters and District judges, will need to develop a more
robust approach to the task of managing cases and ensuring that their orders are
not ¬‚outed™.302) They must, in particular, be resistant to applications to extend a
set timetable, save in exceptional circumstances and they would need to be sup-
ported by courts hearing appeals. (˜Procedural decisions must not be overturned
lightly . . . This is not simply a matter of limiting appeals. It goes to a change of
culture in which judges can make orders con¬dent that parties will not feel that
they can ignore orders or that they can escape unscathed by appealing™.303)
The new rules provide for seven di¬erent kinds of sanctions: striking out a
statement of case; excluding argument or evidence;304 orders for security for the
sum in issue and for present and future costs; orders for payment (or non-
payment) of costs, in some cases on the indemnity principle and for the imme-
diate assessment and payment of costs; orders for payment of interest at penal
rates; proceedings for contempt; and wasted costs orders. The court can impose
a sanction on its own initiative with or without holding a hearing and with or
without an opportunity for the party a¬ected to make representations (CPR
3.3). However, a party whose case is struck out can apply to have it reinstated.
Thus, the court has the power to strike out a statement of claim if ˜there has
been a failure to comply with a rule, Practice Direction or court order™ (CPR
3.4) or if the claimant does not pay the fee payable when an allocation ques-
tionnaire or listing questionnaire is served (CPR 3.7). Where a party has failed
to comply with a rule, Practice Direction or court sanction, any sanction for
such failure takes e¬ect unless the party in default applies for and gets relief
from the court (CPR 3.8). CPR 3.9 sets out nine considerations that the court
should take into account. They include the interests of the administration of

296 297 298
Ibid at p. 75, para. 11. Ibid at p. 75, para. 12. Ibid at p. 72, para. 13.
299 300 301
Ibid at p. 75, para. 13. Ibid at p. 75, para. 14. [1994] 1 WLR 732.
302 303
Final Report at p. 76, para. 15. Ibid.
304
For instance, CPR 3.1(2)(k) where a claimant fails to provide further information or a
schedule of damage or r. 32.10 if a witness or summary is not provided within the time limit.
130 Pre-trial civil proceedings


justice, if the application for relief was made promptly, whether there is a good
explanation for the failure and the e¬ect that granting relief would have on each
party. As has been seen, there is also a general ˜slip rule™ giving the court power
to cure any error in procedure such as a failure to comply with a rule or Practice
Direction (CPR 3.10).
There is one new rule that somewhat eases the pressure created by time limits.
CPR 2.11 says that, unless the rules or a Practice Direction provide otherwise,
the parties can give each other permission to extend time limits by written
agreement. The rule then cites the cases where this is not possible. One is where
a rule, Practice Direction or court order requires something to be done within
a speci¬ed time and also speci¬es the consequences of failure to comply (CPR
3.8(3)). Another is an extension of time that would cause an alteration of the
fast track case management timetable in respect of the return of the listing ques-
tionnaire or the date of the trial (or trial period) (CPR 28.4). A third is an exten-
sion of time that would cause an alteration of the multi-track timetable in
respect of the case management conference, a pre-trial review, the return of the
listing questionnaire or the trial (or trial period) (CPR 29.5). In these instances,
an extension of time requires the consent of the court.
There is no Practice Direction on how the courts should approach the appli-
cation of sanctions and no speci¬c reference, save in the overriding objective, to
the doctrine of proportionality.
In his report, Lord Woolf made clear that adherence to the new rules had to
be strictly enforced, especially with regard to time limits. With regard, for
instance, to the fast track:
I regard adherence to the overall timetable, with strict observance of the set trial
date, as an essential component of the fast track. For this reason, the directions
order will be framed as a series of requirements which must be completed by
speci¬ed dates and will include an automatic sanction for non-compliance,
unless an extension order has been obtained prospectively. Parties will be in
breach of the order unless they comply with the directions by the date speci¬ed.305
Mr Justice Lightman, lecturing at the Judicial Studies Board shortly before the
Woolf reforms were due to take e¬ect, gave full support to this dramatically
di¬erent approach. At common law, he said, time was of the essence. Equity
modi¬ed this rule. In equity, time was not of the essence. In 1873, with the
merger of common law and equity, the rules of equity prevailed and that was the
prevalent attitude in respect of rules in the pre-Woolf era. The traditional atti-
tude of the courts had been that every default in respect of the rules was venal
and so remediable. Save in exceptional circumstances every litigant should be
allowed his day in court. That approach was no longer maintainable and was out
of accord with the new rules. With regard to time limits, he said: ˜time is now of
the essence, but in cases where a su¬cient cause exists, an application may be


305
Final Report at p. 35, para. 15.
131 Pre-trial case management


made for relief from the draconian sanctions for non-compliance and relief may
be granted if to do so accords with the overriding objective™. There was therefore
no scope for a presumption that apparently draconian provisions should be
interpreted narrowly. ˜The judges at the coal face must be robust™.306
For a very di¬erent philosophy see Sir Jack Jacob, doyen of civil procedural-
ists, in his dissent to the report of the Winn Committee in 1968:
The admonition by Lord Justice Bowen that ˜courts do not exist for the sake of
discipline™ should be re¬‚ected in the principle that rules of court should not be
framed on the basis of imposing penalties or producing automatic conse-
quences for non-compliance with the rules or orders of the court. The function
of rules of court is to provide guidelines not trip wires and they ful¬l their func-
tion most where they intrude least in the course of litigation.307
The ¬rst important post-CPR decision given by Lord Woolf in Biguzzi v. Rank
Leisure Plc308 sounded a distinctly more emollient note than his earlier rhetoric
might have suggested. The claimant was injured in 1993. His action got bogged
down through default on both sides. Shortly before the CPR came into force,
the District judge struck out the action even though the delay had not caused
serious prejudice to the defendants or to the chances of a fair trial “ on the
ground that there had been a wholesale disregard of the rules amounting to an
abuse of process. After the CPR came into force an appeal was allowed mainly
on the ground that there was nothing unfair in allowing the case to go forward
largely because the defendant as well as the claimant had been guilty of serious
default. The Court of Appeal upheld that decision. Lord Woolf said that the dra-
conian step of striking-out, whilst available to a procedural judge in his wide-
ranging discretion, was one which did not achieve justice in this particular case.
Such an order simply led to hard fought appeals and satellite litigation with dis-
proportionate costs. The advantage of the CPR over the previous rules, he said,
was that the courts™ powers were much broader than they had been. ˜In many
cases there will be alternatives which enable a case to be dealt with justly without
taking the draconian step of striking the case out™ (p. 940). There were a range
of alternative sanctions such as requiring the claimant to make a payment into
court by way of security for costs or ordering the defendant to pay costs on the
higher indemnity basis. The courts had to apply the overriding objective of
dealing with cases justly which included a need to show that non-compliance
with time limits would not be tolerated.
This leaves the matter largely in the hands of judges at ¬rst instance:
Judges have to be trusted to exercise the wide discretions which they have fairly
and justly in all the circumstances, while recognising their responsibility to liti-
gants in general not to allow the same defaults to occur in the future as have
occurred in the past. When judges seek to do that, it is important that this court

306
Mr Justice Lightman, ˜Sanctions under the New Rules™, New Law Journal, 5 March 1999, p. 336.
307
Report of the Committee on Personal Injury Litigation, 1968, Cmnd. 369, pp. 151“2.
308
[1999] 4 All ER 934.
132 Pre-trial civil proceedings


should not interfere unless judges can be shown to have exercised their powers
in some way which contravenes the relevant principles (p. 941).
When considering whether to grant relief from a failure to comply with a rule
under r. 3.9 the court will weigh the matters that are speci¬cally listed and any
others that seem relevant in the particular circumstances. The relevance of case
law is debatable. Counsel try to persuade the court that they have precedents
that are signi¬cant. The courts often indicate that each case must be judged in
light of its particular facts and that precedents are therefore not useful.

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