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In 2004, in her regular updating column on the Civil Procedure Rules,
Suzanne Burns wrote: ˜the thrust of most recent cases continues to be that
justice takes precedence over procedural fault, unless the latter is very serious or
the conduct is repeated™.309
For a review of the case law by Professor A. Zuckerman see his ˜Enforcing
Compliance with Deadlines™, 23 Civil Justice Quarterly, 2004, pp. 231“43. As has
been noted, Zuckerman favours the disciplinarian approach to failure to comply
with the rules. He regretfully concluded that ˜the court seems willing to counte-
nance further extensions of time even where there have been repeated failures to
comply with time limits culminating in breach on an unless order™. Equally wor-
rying, he thought, was ˜the growing list of cases interpreting, explaining and
re¬ning the meaning and signi¬cance of the factors mentioned in the checklist
of CPR, r. 3.9 which must be studied when dealing with an application to relief
from sanctions™.310 On the other hand, he welcomed the increasing tendency of
the court to require defaulting litigants to pay money into court as a condition
for receiving an extension of time for ful¬lling procedural requirements. This
was a powerful and e¬ective tool for promoting compliance, though it could lead
to further disputes and give rise to further court hearings.
See also a recent important contribution to this debate by D.S. Pigott, ˜Relief
from Sanctions and the Overriding Objective™, 24 Civil Justice Quarterly, 2005,
pp. 103“29.


Assessment of the Woolf reforms
The writer was from the start and consistently a critic of the Woolf reform
project on the ground that on balance they would make things worse rather
than better.311 This, however, was very much the minority view. Both branches
of the legal profession, the judiciary and both the lay and the legal press strongly
309 310
Legal Action, March 2004, p. 13. At pp. 231“2.
311
See M. Zander, ˜Are There Any Clothes for the Emperor to Wear?™, 145 New Law Journal, 3
February 1995, p. 154; ˜Why Lord Woolf ™s Proposed Reforms of Civil Litigation Should be
Rejected™ in Reform of Civil Procedure “ Essays on Access to Justice (eds. A.A.S. Zuckerman and
R. Cranston, Clarendon, 1995, pp. 79“95); and the Chancery Bar Association Lecture, ˜The
Woolf Report: Forwards or Backwards for the New Lord Chancellor?™, 16 Civil Justice
Quarterly, July 1997, pp. 208“27. Lord Woolf used the occasion of the Gee Lecture at the
Royal College of Physicians to reply, ˜Medics, Lawyers and the Courts™, 16 Civil Justice
Quarterly, October 1997, pp. 302“17, also on www.lcd.gov.uk/judicial/speeches/speechfr.htm.
133 Pre-trial case management


supported the Woolf reforms.312 The only serious issue raised by those who sup-
ported the reforms was whether the Government would put in the necessary
resources to make them work, notably with regard to IT. (As was seen above,
fears about IT resources for the civil courts proved to be well founded.)
Writing in 2006, seven years having elapsed since the reforms went live in
April 1999, what can be said about how they have worked out?

Apparent benefits deriving from the Woolf reforms
The majority of those concerned with the civil litigation business believe that
the Woolf reforms are working quite well. Even those who have concerns are
mainly, on balance, positive.
The indications from a variety of sources seem to justify the following propo-
sitions as to the bene¬ts ¬‚owing from the implementation of the Woolf reforms:
• A less adversarial culture between the parties is developing “ confounding the
views of pessimists such as the writer who considered such a development
improbable. Peysner and Seneviratne (2005) reported: ˜the overall view was
that the culture had changed for the better. The general feeling, shared by
judges, court sta¬ and practitioners, was that the reforms had achieved the
objective in this respect and that this was an improvement on the previous
system™. The parties are more co-operative toward each other “ partly at least
because of the consequences under the CPR of not being co-operative.
• Pre-action protocols appear to be working to promote earlier settlement and
probably more settlement.
• Settlements are also promoted by the fact that under the CPR the question of
costs can be treated separately.
• Since pre-action protocols result in more work being done earlier, cases that
would have settled anyway are likely to settle on the basis of more relevant
information.
• Part 36 payments or o¬ers of payment “ and especially the possibility of Part
36 o¬ers by claimants “ seem to be helping to achieve earlier and perhaps
more settlements.
• The use of single joint experts is working better than critics feared. (However,
in some cases, parties hire their own experts to shadow the joint expert.313)
• The fact that under the CPR parties can be ordered to pay the costs of
interlocutory applications right away has resulted in fewer interlocutory
applications.

For the writer™s riposte see ˜Woolf on Zander™, 147 New Law Journal, 23 May 1997, p. 768. For
a broader view of the issues see the writer™s Lionel Cohen Lecture given at the Hebrew
University in Jerusalem, ˜What can be done about Cost and Delay in Civil Litigation?™, 31
Israel Law Review, 1997, pp. 703“23.
312
For a very positive early assessment of progress by the civil servant in charge of
implementation, see D. Gladwell, ˜Modern Litigation Culture: The First Six Months of the
Civil Justice Reforms in England and Wales™, 19 Civil Justice Quarterly, 2000, pp. 9“18.
313
J. Peysner, ˜Controlling Costs™, 153 New Law Journal, 25 July 2003, pp. 1147 and 1148.
134 Pre-trial civil proceedings


• Considerable e¬orts have been made to promote consistent approaches to
case management throughout the country. Courses are run by the Judicial
Studies Board which have to be attended by all new judges.
However, there are important issues that give rise to concern and others where
there is uncertainty.

Issues of concern or uncertainty
The fall in the number of cases issued
It was one of Lord Woolf ™s aims that more cases would settle without the need
for legal proceedings.
At around the time of the introduction of the Woolf reforms, for whatever
reason, there was a signi¬cant drop in the number of claims issued. In 1999,
the year the Woolf reforms were introduced, the total number of county court
proceedings issued was 2 million. In 2000 it had fallen to 1.87 million and in the
years 2001“04 it was 1.71 million, 1.63 million, 1.57 million and 1.6 million. In
2005 it rose again to 1.87 million.314 Commenting (before the possibly signi¬-
cant rise in 2005), Professors Peysner and Seneviratne said: ˜the number of
cases seem to have declined rapidly as soon as the CPR was introduced. This
may have been a function of legal conservatism with litigators having issued as
many cases as possible under the pre-CPR arrangements and waiting for others
to make mistakes in the new system. However, this would cause a temporary
dip and could not be responsible for the long term substantive drop in
numbers™.315
The long term substantive drop in numbers of cases issued is not however
just a phenomenon of the post-Woolf reforms era. It started well before the
Woolf reforms were introduced.
In the twenty years from 1958“78 the ¬gure for proceedings issued in the
county court was stable at 1.3“1.5 million. In the next ten years to 1988 it rose
to 2.3 million. By 1990 it had again hugely increased to 3.3 million and it rose
to a peak of 3.5 million in 1992.
Since 1992, year by year, there was a steady drop: 1993, 2.98 million, 1994,
2.65 million, 1995, 2.44 million and 1996, 2.34 million. Since there was a con-
siderable fall year by year from 1992 onwards, the further fall since 1999 cannot
be attributed exclusively or even mainly to the Woolf reforms. The e¬ect the
reforms have had in this regard is unknown and probably unknowable.
The drop over recent years in the number of cases being handled by the civil
courts has also occurred in other countries.316

314
Judicial Statistics, 2005, Table 4.1, p. 46.
315
The Management of Civil Cases: the Courts and the Post-Woolf Landscape, DCA, 9/2005.
316
The American Journal of Empirical Legal Studies devoted the whole of its vol.1, no. 3, 2004
(nearly 1,000 pages!) to the phenomenon of the ˜vanishing trial™. See especially the long
¬rst article by M. Galanter, ˜The Vanishing Trial: An Examination of Trials and Related
Matters in Federal and State Courts™, pp. 459“565 and H.M. Kritzer™s, ˜Disappearing Trials?
A Comparative Perspective™, pp. 735“54 in which he deals with England and Ontario.
135 Pre-trial case management


One unfortunate side-e¬ect of the drop in the number of civil cases is a cor-
responding fall in the income derived from court fees. While the DCA, no doubt
driven by the Treasury, continues to insist on the full recovery of the costs of the
civil court system from litigants, this will have the inevitable result of forcing
the level of court fees even higher, which could in turn further reduce the
number of cases.

Costs
A central aim of the Woolf reforms was that the cost of litigation would be more
a¬ordable, more predictable and more proportionate to the value and com-
plexity of individual cases.
The research evidence so far derives from the research by Goriely, Moorhead
and Abrams,317 from the study conducted for the Civil Justice Council by P.
Fenn and N. Rickman318 and from the report by Professors Peysner and
Seneviratne.319
The study by Goriely, Moorhead and Abrams looked at the e¬ect of the Woolf
reform on costs both through interviews with the players and by examining pre-
Woolf and post-Woolf ¬les of concluded cases.
Claimant solicitors said that di¬erent changes had had di¬erent e¬ects. The
fact that fewer claims were issued was thought to lead to obvious cost reduc-
tions. It was also suggested that cases ˜were now more focused with fewer unnec-
essary disputes over side issues™.320 The courts were also felt to put more
emphasis on proportionality, with a consequent downward pressure on costs.321
On the other hand, costs had been increased by ˜front-loading™ with more work
needed at an earlier stage. More work was necessary before issue ˜as the fast track
timetable left little time to obtain expert evidence or witness statements once
litigation had begun™.322 By and large, claimant solicitors thought front-loading
was right (in that it was work that should be done) but they suggested that,
inevitably, it had a cost impact. Claimant solicitors disagreed as to whether
costs, overall, had gone up, down or had stayed about the same.
By contrast, insurers ˜were united in their views. They all said that, since April
1999, the average cost of a personal injury claim had increased markedly. They
felt this to be the reforms™ “major weakness” ™.323
After considering various sets of ¬gures the researchers concluded: ˜the evi-
dence produced by the insurance industry is strong prima facie evidence that
the cost of personal injury claims has increased™,324 but the ¬gures only related

317
More Civil Justice? The Impact of the Woolf Reforms on Pre-action Behaviour, 2002 “
www.civiljusticecouncil.gov.uk and www.lawsociety.org.uk.
318
Cost of Low Value RTA Claims 1997“2002, January 2003, www.civiljusticecouncil.org.uk. The
study was of settled claims. It used various large databases including 27,378 from one
insurance company, 11,420 from a second, 150,000 cases handled by claims negotiators for
twenty di¬erent insurance companies and 5,852 cases handled by a claimant solicitor™s ¬rm.
319
The Management of Civil Cases: the Courts and the Post-Woolf Landscape, DCA Research
320 321 322 323
Report 9/2005. Ibid at p. 172. Ibid. Ibid. Ibid at p. 174.
324
Ibid at p. 175.
136 Pre-trial civil proceedings


to claims settled in-house, before proceedings had been issued. ˜One cannot be
sure of the overall impact of the reforms, until one is able to take into account
the costs of litigated claims. These may take another few years to work their way
through the system™.325
The authors also reported on the ¬gures in the study of ¬les of actual cases.
These were all small cases that had settled quickly with little substantive dispute.
The median amount paid by opponents in post-Woolf cases was £1,576, com-
pared with £1,393 for pre-Woolf cases “ a di¬erence that was just statistically
signi¬cant. (The mean rose from £1,580 to £1,761, a rise of 11 per cent which
was lower than in the ¬gures produced by the insurance industry but higher
than in¬‚ation (8 per cent).326)
The study by Fenn and Rickman In their conclusions they reported that for
low value ( £15,000) road tra¬c accident cases at the end of July 2001, mean
base costs (excluding disbursements) were approximately £2,000 and mean dis-
bursements were approximately £500. This represented a rise of approximately
25 per cent in base costs over the previous eighteen months (i.e. from mid 2000
to end 2001) and of approximately 10 per cent in disbursements.327
The increases in base costs and disbursements were greatest in the cases in
which legal proceedings had not been issued “ 50 per cent and 25 per cent
respectively. (˜To the extent that these agreed costs re¬‚ect legal inputs, it appears
that much more work is being done at the pre-issue stage in cases settling from
2000 onwards. This is consistent with Woolf-driven cost increases “ though
more work would be required to con¬rm this with statistical con¬dence™
(p. 11).)
The increases were not di¬erent as between conditional fee (CFA) cases and
non-CFA cases.
Costs rose proportionately to damages and to the complexity of the case.
The authors ended their list of ¬ndings:
The trends in costs we have reported appear consistent with the e¬ect of Lord
Woolf ™s reforms on the ˜front-loading™ of casework. This is particularly the case
given that the changes are concentrated on non-CFA, pre-issue cases, at a time
when ˜Woolf cases™ were beginning to be settled in signi¬cant numbers.
However, again the authors emphasised that more work was needed to establish
with statistical con¬dence whether the apparent causal relation suggested by
logic and timing between the Woolf reforms and the rise in costs was real.
The Peysner“Seneviratne study of case management was not designed to gen-
erate hard data on costs but almost a third of their report was devoted to this
issue. In his introduction to his Interim Report Lord Woolf stated that the
problem of costs was the most serious problem besetting the litigation system.
Costs were central to the changes he wished to bring about and he noted that


325 326
Ibid. Ibid. The rise was not due to recoverable success fees (p. 176).
327
American Journal of Empirical Legal Studies, n. 314 above, at p. 17.
137 Pre-trial case management


virtually all his recommendations were designed at least in part to tackle the
problem of costs.
The Peysner“Seneviratne report said there was no doubt that the reforms had
had the e¬ect of front-loading costs: ˜the major ¬nding we made, unequivocally
con¬rming the ¬ndings at the development stage, and agreed unanimously by
all interviewees is that costs are front-loaded™.328 This, it said, was the inevitable
result of the Woolf objective that court proceedings should be a last resort and
only launched when cases were in order. Unless procedures in the pre-action
protocols were reduced in scope, or costs were ¬xed and reduced in the pre-
litigation and early litigation phases, case management had no impact on this
forward-loading e¬ect.
With regard to proportionality of costs the report said: ˜we consistently found
among the judiciary a feeling that costs, particularly in the fast track, were dis-
proportionate and that the CPR had not cured this problem™. The report quoted
a Circuit judge: ˜in the sort of small fast track claims, which may only be for
£1,000 if it is personal injuries, you ¬nd that the solicitors have run up a bill of
£10,000 or £11,000. It is very concerning that a case has been brought, a very
simple whiplash for £1,500 or something, and £10,000 has been expended
on it™.329
As to whether costs overall had risen, the report cited the impressions of
di¬erent players. The judges had no doubt that costs had risen. (˜Certainly the
judiciary, who see those costs claimed in formal bills and make assessments,
o¬ered a consistent view: costs were high before the CPR and they became
higher after the introduction of the CPR™.330) In one sense this was a surprising
¬nding insofar one might have thought that by the time the case came for
assessment of costs, the front-loading e¬ect of the reforms would have worn o¬.
˜Yet the judiciary™s view is that, case-by-case, costs have increased not merely
been front-loaded . . .™331 One reason was that assessing judges had abandoned
the old broad brush approach to costs and were looking for evidence of work
done to support claims for costs. This in turn had resulted in practitioners pro-
ducing highly detailed bills, often professionally drawn, that captured more
time spent on the case. ˜Thus, the so-called “cost industry” meets the demand
that no costs should be paid unless they are evidenced, by ensuring that no
activity is lost, and the result is cost in¬‚ation™.
Practitioners were not quite so ready to accept that overall bills were higher
but none said they had gone down. They argued that the system required a level
of detailed activity that produced high costs.332
In their conclusion on the issue of costs, Peysner and Seneviratne said: ˜in
e¬ect we draw the same conclusion as Rand, that case management (which in
this context includes pre-action protocols, the fast track and individual case
control) is e¬ective in cutting delay but it is ine¬ective in cutting costs, or indeed

328 329
More Civil Justice?, n. 317 above, para. 6.6, p. 62. Ibid, para. 6.6, p. 63.
330 331 332
Ibid, para. 6.6, p. 65. Ibid, para. 6.6, p. 66. Ibid, para. 6.6, p. 67.
138 Pre-trial civil proceedings


may increase costs. Lord Woolf ™s aspiration that case management would
achieve his aims in relation to costs has not been achieved™.333
In other words, all the indications are that the direct e¬ect of the Woolf
reforms is that costs have not gone down as promised, they have gone up. What
is not widely known is that at a very late stage, when the reform process was
already well on the way, Lord Woolf himself admitted that this would happen.
In the Gee lecture given in May 1997, he said: ˜while I favour the greater case
management which is now possible I recognise that case management does
involve the parties in more expense™.334
As to predictability, the erratic decisions of the courts with regard to Part 36
o¬ers and payment into court (above) and equally as regards the rule that costs
follow the event (below) have introduced a major new degree of uncertainty
into the litigation process.
On the other hand, as will be seen there have been important post-Woolf
developments with regard to ¬xed costs (p. 564 below).

Delay
The annual Judicial Statistics tell us that the average waiting time335 from issue
of claim to trial in the county court, which in 1990 was eighty-one weeks and
in 1998 was eighty-¬ve weeks, has since decreased considerably. In 2005 it had
gone down to ¬fty-two weeks.336 The average time from issue to allocation is
around half a year.337 The average time from allocation to trial hovers around
the thirty weeks allowed in fast track cases.338
In the High Court, there has also been improvement. The average waiting
time between issue and trial in the Queen™s Bench Division in the years
1998“2001 ¬‚uctuated between 178 and 164 weeks. In 2002 it dropped to 149.
The following year it rose somewhat to 164 weeks but in 2004 it dropped to 97
weeks.339 The average time from issue to setting down for trial, which ¬‚uctuated
from 1996“2003 between a high of 143 weeks and a low of 103 weeks, had
dropped to forty-three weeks in 2004 “ a remarkable reduction. The average
time from setting down to trial has gone rather the other way. In the two years
1999 and 2000 it was an average of thirty-three and thirty-one weeks respec-
tively but since then it has climbed rather than fallen “ in the four years from


333
Ibid, para. 6.6, p. 71.
334
16 Civil Justice Quarterly, 1997, p. 302 at 314 and also www.dca.gov.uk/judicial/speeches/
335
speechfr.htm. Based on a sample size of 862.
336
Table 4.17. In 1999, it was seventy-nine weeks, in 2000, it was seventy-four weeks, in 2001, it
was seventy-three weeks, in 2002, it was ¬fty-eight weeks, in 2003, it was ¬fty-nine weeks and
in 2004, it was ¬fty-three weeks.
337
Table 4.17. In 2002, it was twenty-eight weeks, in 2003, it was also twenty-six weeks, in 2004,
it was twenty-¬ve weeks and in 2005, it was twenty-four weeks.
338
Table 4.17. In 2002, it was thirty-one weeks, in 2003, it was thirty-two weeks, in 2004, it was
down to twenty-eight weeks and in 2005, it was also twenty-eight weeks.
339
Table 3.9. The Judicial Statistics, 2005, for reasons that are not explained, did not carry this
table.
139 Pre-trial case management


2001“04 it was an average of thirty-eight, forty-seven, ¬fty-¬ve and ¬fty-four
weeks.340
The annual statistics appear encouraging but, as was seen above, they do not
establish that the Woolf reforms have brought down delay. The reason is that
the statistics measure the length of the case from the issue of proceedings to
the trial. If instead one measures the length of the case from the time the
lawyer was ¬rst instructed to trial, the study conducted for the Civil Justice
Council by Goriely et al (p. 126 above) shows that there has not been any
reduction. This is because the lawyers spend more time than before in the pre-
issue stage in order to investigate and prepare the case according to the pre-
action protocols.
There are no later data that throws further light on this important question.
Delay is generally presented as wholly bad. Certainly this was how the Woolf
reports presented it, but this not necessarily so. A study by the Rand
Corporation found that litigants seem more concerned about the fairness of the
process than about delays, or even whether they won or lost.341

Inconsistent decisions
One e¬ect of the Woolf reforms is undeniably to increase judicial discretion
in the decision-making of pre-trial judges “ District judges, Masters, Circuit
judges and High Court judges. Appeals in interlocutory matters are not
encouraged. The result is a great increase in inconsistent but unappealable
decisions. The Law Society™s practitioners™ Woolf Network™s responses to the
periodic questions posed about the state of the reforms repeatedly high-
lighted this issue of inconsistency with regard to the assessment of costs,
sanctions generally, timetable targets, the use and numbers of experts, case
management decisions, pre-action disclosure and security for costs. Peysner
and Seneviratne™s report (2005) said some practitioners thought that the
overriding objective gave too much discretion to the court. ˜The system was
now inconsistent and unpredictable, even “airy fairy” ™. There was a view
that the previous system resulted in more certainty about outcomes, and
that this resulted in cost saving. Many solicitors also said that this uncer-
tainty meant that they might not make applications where they would have
done so in the past.
In the writer™s view the problem of inconsistency of decision-making is a
serious issue and it is one that cannot be signi¬cantly improved whether by

340
Table 3.9.
341
See M. Zander, ˜What Litigants Think of the Tort System™, 139 New Law Journal, 20 October
1989, p. 1422. See also R. Dingwall, T. Durkin and W.L.F. Felstiner, ˜Delay in Tort Cases:
Critical Re¬‚ections on the Civil Justice Review™, 9 Civil Justice Quarterly, October 1990,
pp. 353“65 which showed that, for expert litigators, delay was simply a resource to be
managed in the best interests of the clients; and Dingwall and Dinkin, ˜Time Management
and Procedural Reform: Some Questions for Lord Woolf ™ in Reform of Civil Procedure “
Essays on Access to Justice (eds. A.A.S. Zuckerman and R. Cranston, Clarendon Press, 1995),
pp. 371“392.
140 Pre-trial civil proceedings


judicial training or supervision or guidance from appellate level courts or
anywhere else. It is part of the price that has to be paid for the bene¬ts of the
reforms.

Unjust application of sanctions
When disproportionate sanctions are imposed “ pour encourager les autres “ the
result is, by de¬nition, unjust in the particular case. Lord Woolf insisted that the
courts would need to enforce the rules and it is clear that to an extent they are
doing so. The Court of Appeal decisions described above (pp. 75“76) on fail-
ures with regard to service of claims, illustrate the point. As those cases show,
the Court of Appeal believes that enforcing procedural rules is even more
important than achieving justice in the particular case.
Again, inconsistency aggravates the problem. Judges di¬er as to how rigorous
they are prepared to be in applying the rules and sanctions for breach. Even
individual judges who on one day are strict, may on the next day in similar
circumstances be more lenient. The result is unpredictability.

Conclusion
Contrary to the view of most, the writer remains of the view that on balance the
disadvantages of the reforms outweigh the advantages.342 He believes that if
Lord Woolf had presented his package of reforms with an admission that, in
addition to the great upheaval involved, they would end by costing most liti-
gants more, that their e¬ect on delay was uncertain and that they would hugely
increase uncontrollable judicial discretion, it is doubtful whether they would
have been implemented. Bene¬ts of various kinds are resulting from the
reforms but in the writer™s view they are not su¬cient to compensate for
the detriments.
If that is right, it is legitimate to ask why judges and lawyers seem on the
whole to think the reforms to have been well worthwhile. In the case of the
judges, could it be because they generally approve of the increased powers given
by the reforms to the courts? In the case of the practitioners, could it at least
partly be because legal costs have risen rather than fallen?


F U RT H E R R EA D I N G

For basic pre-Woolf reading on the topic of this chapter see especially the 1986 Hamlyn
Lectures given by Sir Jack Jacob QC published under the title The Fabric of English
Civil Justice (Sweet & Maxwell, 1987).
For reference see the major commentaries issued annually “ the White Book, Civil
Procedure (Thompson“Sweet & Maxwell), Civil Practice (Blackstone) and Civil
Court Practice (Lexis Nexis).


342
For a generally downbeat overall assessment, see also S. Burns, ˜The Woolf Reforms in
Retrospect™, Legal Action, July 2003, pp. 8“11.
141 Alternative dispute resolution (ADR)


For major texts see N. Andrews, English Civil Procedure (OUP, 2003) and A. Zuckerman,
Civil Procedure (2nd ed, Sweet & Maxwell, 2006)
For an excellent assessment of the signi¬cance of the CPR see Joseph Jacob, Civil
Litigation practice and procedure in a shifting culture (2001, Emis Professional
Publishing, £15).
For an examination of the impact of the ECHR and the Human Rights Act on English
civil procedure see Joseph Jacob, Civil Justice in the Age of Human Rights (Ashgate,
forthcoming 2007).
For a valuable series of occasional articles commenting on the frequent amendments and
other CPR related developments see S. Gold in New Law Journal and S. Burns in
Legal Action.343


7. Alternative dispute resolution
In the last few years there has been a dramatic upsurge in new schemes and
systems of alternative dispute settlement (ADR) which now has a large litera-
ture of its own and much support. ADR has not yet become directly part of the
court system, as has happened in the United States, but it has increasingly been
brought into connection with the ordinary legal system “ a development that
was given great further emphasis through the CPR.
In December 1993, a Practice Direction in the Commercial Court introduced
questions about ADR into the pre-trial checklist to be answered by the parties.
Legal advisers were urged to ensure that parties were fully informed of the most
cost e¬ective means of resolving disputes.344 In January 1995, the Lord Chief
Justice™s Practice Direction (p. 124 above) gave strong backing to the impor-
tance of ADR. The Practice Direction gave the text of the pre-trial checklist to
be lodged with the court. This speci¬cally asked solicitors to state whether some
form of ADR might ˜assist to resolve or narrow the issues in this case™ and
whether there has been exploration with the client or the other side of the pos-
sibility of resolving the dispute (or particular issues) by ADR.
In 1996, the judges of the Commercial Court announced that in appropriate
cases they would invite the parties to take positive steps to set in motion ADR
procedures. The judge might adjourn the proceedings for a speci¬ed period of
time to encourage and enable the parties to take such steps. If, after discussion
with both sides, it appeared that an early neutral evaluation was likely to assist
in the resolution of the matters in dispute, the judge might o¬er to provide that
evaluation or to arrange for another judge to do so. The judge who provided the
early neutral evaluation would, unless the parties agreed otherwise, take no
further part in the case.345

343
See also S. Burns, ˜The Human Rights Act and Civil Procedure™, Legal Action, September 2001,
p. 33.
344
[1994] 1 All ER 34.
345
See on this development Law Society™s Gazette, 19 June 1996, pp. 36 and 39; Solicitors™ Journal,
16 October 1999, p. 936; and more generally on ADR for heavy commercial cases, Law
Society™s Gazette, 5 November 1997, pp. 22“7.
142 Pre-trial civil proceedings


Another ¬eld in which ADR, in the form of mediation, appeared to be making
some progress was that of matrimonial disputes and divorce. Mediation is a
method of resolving disputes by having a neutral third party guide the parties to
their own solution. Lord Woolf ™s report called it a form of ˜facilitated negotia-
tion™. In 1995, the Government announced that it intended that mediation
should have a formal role in a new form of no-fault divorce.346 Mediation, it said,
would reduce bitterness, would improve communication between couples and
would help them reach agreement. Also, it should be more cost e¬ective. The
White Paper said that the Government was satis¬ed that even when mediators
were paid more than had been the case in the pilot studies, ˜family mediation will
still prove to be more cost e¬ective than negotiating at arm™s length through two
separate lawyers and even more so than litigating through the courts™.347
Though mediation was not to be compulsory it was to be strongly promoted.
Part II of the Family Law Act 1996 which provided for no-fault divorce, also
included a requirement (s. 8) to attend an information meeting at which the
parties would get information about marriage counselling and on con¬‚ict reso-
lution and mediation. Intending divorcees would be told that mediation might
be a better alternative to litigation and confrontation in the courts. Part II also
had a power for the court to direct that the parties attend a meeting to explain
mediation (s. 13). Part III provided that legal aid could be given for mediation in
family matters (s. 27). Before the Legal Aid Board could consider an application
for legal aid, clients were supposed to attend an appointment with a mediation
provider to see whether mediation would be suitable. Only if it was deemed to be
unsuitable could the client get legal aid for representation for legal proceedings.
The Legal Aid Board initiated a number of pilot studies to test this system,
but the pilot studies proved disappointing. Many tried to avoid the intake inter-
view. Fewer were deemed suitable for mediation than had been hoped. The
Advisory Board under the Act said in its Second Annual Report in May 1999:
˜while the implementation of s. 29 has clearly already had some impact, the pro-
portion of cases in the pilot franchises electing to use mediation remains as yet
very small™ (para. 2.25). The result of low usage was that the average cost per
case amongst mediation providers was high, as their ¬xed costs were spread over
a small number of cases. Interim ¬ndings from research into the pilots con-
ducted by Newcastle University suggested that only 7 per cent of people who
attended the s. 8 information meetings went on to mediation. Four out of ten
people reported that after attending these meetings they were more likely in
future to go to a solicitor.348
An announcement about implementation of Part II of the 1996 Act was
expected in summer 1999 but in June 1999, in a written parliamentary answer,

346
White Paper, Looking to the Future: Mediation and the Grounds for Divorce, Cm. 2799, 1995.
347
White Paper at p. 42, para. 5.19.
348
For the implications, see D. Hodson, ˜Family Law Act 1996; Where Now?™ Solicitors™ Journal, 2
July 1999, p. 632 and Law Society™s Gazette, 21 July 1999, p. 22 at 31. For the background see
S. Roberts, ˜Decision-Making for Life Apart™, 58 Modern Law Review, 1995, pp. 714“22. For
143 Alternative dispute resolution (ADR)


the Lord Chancellor, Lord Irvine, announced that implementation of Part II of
the Act would be postponed until 2000 when the full results of the pilot studies
would be available.349 Experts predicted that in reality this spelled the end of the
provisions “ or at least that the Lord Chancellor had decided that they would
not be implemented in the then current Parliament. They were proved to be
right. It has not been implemented.
There was speculation as to the reasons. Had the Lord Chancellor been per-
suaded that mediation would not after all be cheaper? Was he worried about
political rows over no-fault divorce? Did he see the compulsory information
sessions to ˜push™ mediation instead of court proceedings as an infringement of
civil liberties? Whatever the reason, the abandonment of the project was plainly
a setback for the mediation bandwagon.
Another technique of ADR is the ombudsmen who deal with complaints in
a variety of contexts in both the public and the private sector. The public sector
ombudsmen include the Parliamentary Commissioner, the Local Government
Commissioner and the Legal Services Ombudsman.350 Private sector ombuds-
men exist in a number of industries such as insurance, building societies, pen-
sions, banking and estate agencies. (The Financial Services and Markets Act
1999 amalgamated several of these schemes in the person of one ˜overlord™
Financial Services Ombudsman.)

Woolf and ADR
Lord Woolf ™s Interim Report devoted a chapter to ADR. He did not propose that
ADR should be imposed compulsorily on parties to civil litigation but he greatly
welcomed the development and the strengthening of ADR. He suggested that
in multi-track cases at the case management conference and pre-trial review the
parties should be required to state whether the question of ADR had been dis-
cussed and, if not, why not. The Lord Chancellor and the Court Service should
treat it as one of their responsibilities to make the public aware of the possibil-
ity o¬ered by ADR.
In his Final Report, Lord Woolf urged that people should be encouraged to use
the growing number of grievance procedures, ombudsmen351 or other available

a discussion of the problem and possible solutions see G. Bevan et al, ˜Piloting a Quasi-
Market for Family Mediation among Clients Eligible for Legal Aid™, 18 Civil Justice Quarterly,
1999, pp. 239“48. See also A. Baker and P. Townsend, ˜Is our Faith in Mediation Misplaced?™,
163 Justice of the Peace, 20 March 1999, p. 224.
349
House of Lords, Hansard, 17 June 1999, vol. 602, WA col. 39.
350
See on this subject, for instance, R. Nobles, ˜Access to Justice through Ombudsmen: the
Courts™ Response to the Pensions Ombudsman™, 21 Civil Justice Quarterly, 2002, pp. 94“117.
351
In his Interim Report Lord Woolf expressed the hope that the private ombudsmen system
˜which has an impressive track record in relation to the service industries™ should be extended
to cover consumer complaints in the retail sector. They had many advantages including the
fact that they are free and that complainants do not need the assistance of lawyers. Using the
ombudsman did not prevent the complainant from taking legal proceedings if in the event the
ombudsman was not able to provide a satisfactory outcome. Also there should be a closer
relationship between ombudsmen and the courts. Ombudsmen should have the right to apply
144 Pre-trial civil proceedings


ADR method before taking judicial review proceedings.352 He repeated his
Interim Report recommendations on ADR and added a new one “ that when con-
sidering what order to make as to costs, the court should be able to take into
account a party™s unreasonable refusal to attempt ADR or lack of co-operation
in ADR.
ADR features prominently in the rules. CPR 1.4(1) states that ˜the court must
further the overriding objective by actively managing cases™. CPR 1.4(2) goes on
by elaborating twelve di¬erent examples of what active case management
means. The ¬fth of these is ˜encouraging the parties to use an alternative dispute
resolution procedure if the court considers that appropriate and facilitating the
use of such procedure™. The duty is therefore that of the court, but under CPR
1.3 the parties have the obligation of helping the court to further the overrid-
ing objective. When ¬ling the allocation questionnaire a party may make a
written request for the proceedings to be stayed ˜while the parties try to settle
the case by alternative dispute resolution or other means™ (CPR 26.4). Also the
court can order a stay of its own initiative (CPR 26.4(2)(b)). The court can also,
of its own initiative, order the parties to consider ADR (CPR PD 29). If a party
considers that ADR is not suitable, it must ¬le a witness statement setting out
the reasons why.
The Practice Direction on Pre-Action Protocols was amended as from April
2006 to strengthen the ADR provision. Paragraph 4.7 now reads:
4.7 The parties should consider whether some form of alternative dispute reso-
lution procedure would be more suitable than litigation, and if so, endeavour to
agree which form to adopt. Both the Claimant and Defendant may be required
by the Court to provide evidence that alternative means of resolving their
dispute were considered. The Courts take the view that litigation should be a last
resort, and that claims should not be issued prematurely when a settlement is
still actively being explored. Parties are warned that if the protocol is not fol-
lowed (including this paragraph) then the Court must have regard to such
conduct when determining costs.
The paragraph then refers to three ADR options for consideration: discussion
and negotiation, early neutral evaluation by an independent third party and
mediation. It refers to a booklet on ADR published by the Legal Services
Commission.353

Footnote 351 (cont.)
to a court for a ruling on a point of law without requiring the complainant to commence legal
proceedings. It would be an advantage if the courts were able to refer issues to an
ombudsman, subject to the parties™ consent and that of the ombudsman in question. In any
subsequent proceedings, the ombudsman™s ¬ndings of fact would be accepted as being correct
in the absence of evidence to the contrary. This would involve changes to the statutory
position of public ombudsmen. The same concept should be applied to private sector
ombudsmen if they thought it acceptable (Interim Report at pp. 139“140).
352
At p. 251, para. 7.
353
˜Alternatives to Court™, CLS Direct Information Lea¬‚et 23 “ www.cls.org.uk/legalhelp/
lea¬‚et23.jsp.
145 Alternative dispute resolution (ADR)


The paragraph ends: ˜it is expressly recognised that no party can or should be
forced to mediate or enter into any form of ADR™.
The DCA ¬ve-year strategy for 2004“09 stated that the Department aimed to
achieve ˜earlier and more proportionate resolution of legal problems and dis-
putes™. The target was by March 2008 to reduce the proportion of court cases
going to a hearing by 5 per cent. A key element in that strategy was to encour-
age more use of ADR.

The costs sanction
Sabotaging the e¬ort at ADR can be penalised in costs if the case comes back to
the courts. This happened in Dunnett v. Railtrack Plc354 where the Court of
Appeal refused to give the successful defendants their costs because they had
refused to consider ADR which the trial judge had urged should be attempted
when he granted leave to appeal from his decision.355
However, a litigant™s refusal to engage in ADR is not always treated as unrea-
sonable. In Watson Wyatt v. Maxwell Batley,356 Mr Justice Colman refused the
claimant™s application to block part of the defendant solicitors ¬rm™s costs because
their refusal to mediate had not been unreasonable. The judge held that three sep-
arate invitations to mediate were not genuine but had been employed as an
aggressive tactic. In Hurst v. Leeming,357 Mr Justice Lightman held that a barrister
involved in professional negligence proceedings was entitled to his full costs even
though he had refused to mediate. His refusal was not unreasonable because the
personality of the opponent made it improbable that mediation would succeed.358
The leading case is Halsey v. Milton Keynes General NHS Trust.359 The
claimant in a clinical negligence case failed in her action but then sought to have
the defendant health authority penalised in costs because it had repeatedly
refused to mediate. The Court of Appeal rejected her contention, holding that
the health authority had been justi¬ed in refusing to mediate because it rea-
sonably believed that it would win the case. Some cases were not suitable for

354
[2002] EWCA Civ 303, [2002] 1 WLR 2434, [2002] 2 All ER 850. For commentary see I.
Grainger, ˜The Costs Consequences of a Failure to Mediate™, 23 Civil Justice Quarterly, 2004,
pp. 244“7.
355
See to similar e¬ect Cable & Wireless Plc v. IBM United Kingdom Ltd [2002] EWHC 2059,
[2002] 2 All ER (Comm) 1041 and R (Cowl) v. Plymouth City Council [2001] EWCA Civ 1935,
[2002] 1 WLR 803. See also Royal Bank of Canada Trust Corpn Ltd v. Secretary of State for
Defence (2003) Times, 14 May, Ch D in which the judge refused to award any costs to the
Department of Defence even though it had won on the substantive issue because of its
˜surprising™ rejection of an o¬er of mediation by the claimants. The judge said he was
in¬‚uenced in particular by the Government™s 2001 pledge that ˜ADR will be considered and
used in all suitable cases wherever the other party accepts it™.
356
(2002) Times, 15 November, Solicitors™ Journal, 29 November 2002, p. 1072.
357
[2001] EWHC 1051, [2003] 1 Lloyd™s Rep 379, Ch.
358
See similarly Hickman v. Blake Lapthorn [2006] EWHC 12, QB where the judge said the test
was whether counsel™s refusal to consider mediation was unreasonable “ which on the facts of
the case it was not. For commentary see S. Prince, ˜Negotiating Mediation™, 156 New Law
Journal, 17 February 2006, p. 262 and ˜Costs Cutting™, 156 New Law Journal, 5 May 2006,
359
p. 737. [2004] EWCA Civ 576, [2004] 4 All ER 920.
146 Pre-trial civil proceedings


mediation “ for instance where fraud was alleged, where what was wanted was
to establish a precedent by a judicial decision or where an injunction was
sought. Article 6 of the European Convention on Human Rights guaranteed the
right to have a dispute determined by an impartial tribunal. Parties could not
be compelled to mediate. Even when the court ordered mediation therefore, this
was no more than very strong encouragement to mediate. Forcing an unwilling
party to mediate, Lord Justice Dyson said, ˜would impose an unacceptable
obstruction on their right of access to the court™.
Whether the winning party would be penalised in costs for a refusal to
mediate would depend on the case. It was for the losing party to persuade the
court that the winning party™s refusal had been unreasonable. The Court of
Appeal rehearsed factors that could be relevant: the nature of the dispute, the
merits of the case, the extent to which other settlement methods had been
attempted, whether the costs of mediation would be disproportionately high,
whether delay in establishing mediation would be prejudicial and whether the
mediation had a reasonable prospect of success.360
What is not clear is whether coercing ADR through use of the threat of the
costs sanction is compatible with the ECHR™s requirement in Article 6 for a fair
and public trial.

Low take-up
While the ˜mood music™ of the courts is certainly therefore in favour of ADR, it
is making slow headway on the ground as a means of resolving civil disputes.
The abandonment of mediation under the Family Law Act was an obvious
example. Another was the modest success of the scheme to promote ADR set
up in January 1996 at the Central London county court. All defendants facing
non-family civil disputes of over £3,000 were o¬ered mediation at the nominal
rate of £25. Research on the project by Professor H. Genn of University College,
London found that, despite the negligible cost, only 5 per cent of litigants
approached took up the o¬er. Those who did use the service achieved a settle-
ment in 62 per cent of cases and generally were satis¬ed. The process promoted
and speeded up settlement and reduced con¬‚icts, but it was unclear to what
extent the mediation saved costs and, where the mediation was unsuccessful, it
had the e¬ect of increasing costs. Also the level of damages was distinctly lower
than that of the courts “ a possible explanation why most practitioners seem less
than enthusiastic.361

360
See also Burchell v. Bullard [2005] EWCA Civ 358.
361
H. Genn, The Central London County Court Pilot Mediation Scheme, LCD Research Series
5/98. For a substantial report on the state of ADR in the UK construction industry see N.
Gould and M. Cohen, ˜ADR: Appropriate Dispute Resolution in the UK Construction
Industry™, 17 Civil Justice Quarterly, 1998, pp. 103“27. The conclusion was that although
formalised mediation was only rarely invoked it was a technique that was available for
appropriate cases.
362
For evaluations of three of these schemes see L. Webley, P. Abrams and S. Bacquet, Evaluation
of the Birmingham Court-Based Civil (Non-Family) Mediation Scheme, November 2005, DCA
147 Alternative dispute resolution (ADR)


However, the scheme has continued and indeed developed. By 2003 there
were comparable schemes at four other county courts “ Birmingham, Leeds,
Exeter and Guildford.362
In 2002 the LCD published another study by Professor Genn “ Court-based
ADR initiatives for non-family civil disputes: the Commercial Court and the Court
of Appeal.363 The Commercial Court judge may make an order directing the
parties to attempt ADR to resolve the dispute. The study covered the four-year
period from July 1996 to June 2000. The number of orders had grown consid-
erably since the introduction of the CPR. Where pre-CPR the average rate was
about thirty annually, in the last six months there had been sixty-eight such
orders. During the whole period there were 233 cases in which an ADR order
had been made. Information was available regarding 184. Of these, 103 (56 per
cent) tried mediation.
Summarising her research on ADR orders in the Commercial Court, the
Court of Appeal ADR scheme and the earlier Central London county court
mediation scheme, Professor Genn drew the following conclusions:364
• Voluntary take up of invitations to enter ADR schemes remained at a modest
level, even when the mediator™s services were provided free or at a nominal cost.
• Outside of commercial practice, the profession remained very cautious about
the use of ADR. Positive experience of ADR did not appear to be producing
armies of converts. Explanations might lie in the amount of work involved in
preparing for mediation, the incentives and economics of mediation in low-
value cases and the impact of the Woolf reforms. More pre-issue settlements
and swifter post-issue settlements might diminish the perceived need for
ADR in run-of-the-mill cases.
• An individualised approach to the direction of cases toward ADR was likely to be
more e¬ective than general invitations at an early stage in the litigation process.
• Subjective perceptions of the profession supported the view that successful
ADR saved the likely costs of proceedings to trial and might save expenditure
by promoting earlier settlement than might otherwise have occurred.
However, unsuccessful ADR could increase the costs for parties.
• ADR generally resulted in a high level of customer satisfaction.
The research carried out in 2003“04 in eight county courts by Professors
Peysner and Seneviratne con¬rmed this basically pessimistic appraisal.365 After
reviewing the evidence on ADR they concluded:
It seems that ADR has not become incorporated into the court process. Cases are
settling, but this is not because they are being mediated. The judges are reluctant

Research Series and S. Prince and S. Belcher, An Evaluation of the E¬ectiveness of Court-Based
Mediation Processes in Non-Family Civil Proceedings at Exeter and Guildford County Courts,
363
May 2005, DCA Research Series. LCD Research Series 1/2002.
364
See the executive summary at www.dca.gov.uk “ Research.
365
The Management of Civil Cases: the Courts and the Post-Woolf Landscape, DCA Research
Report 9/2005, section 4.5.
148 Pre-trial civil proceedings


to order mediation because of the lack of facilities and resources . . .
Practitioners said that mediation was inappropriate at the beginning of the lit-
igation process because there was insu¬cient information to know the strength
of the case. Towards the end, all the costs had been incurred, so there was little
point in not going ahead with the trial.366
It seems that, despite the hype and its success when used, ADR is only used in a
tiny proportion of cases.
Reasons for the low take up of ADR by litigants have been suggested by the
Centre for E¬ective Dispute Resolution (CEDR):
• The process is unfamiliar to clients and practitioners. The latter in particular
and not unnaturally they prefer to stick to what they know and how they nor-
mally operate unless there are incentives to do otherwise.
• Classic positional negotiation behaviour in con¬‚ict makes it awkward for a
party to suggest talks or even talks about talks.
• People resist going to third parties (including advisers and the courts) unless they
either (1) are familiar with the process; (2) see it as the only real option and (3)
accept it as a ˜socially credible™ (i.e. a known and acceptable) option.367
Frustration at the slow development of ADR has led the DCA to experiment
with some form of quasi-compulsion. The basic philosophy of mediation is that
it is a voluntary, consensual process,368 but an experiment in Ontario appeared
to justify the view that mediation could be successful and could give satisfaction
even when the parties were forced to mediate against their will.369
In March 2004 the DCA announced the establishment of a scheme in the
Central London county court for the automatic referral of selected cases to
mediation (ARM).370 The ARM scheme involved random allocation of 100
cases per month to mediation at the point at which a defence was entered.
Trained mediators from one of four mediation organisations were to be allo-
cated on a rotation basis. The mediation would last up to three hours and would
cost £100 per party.
The referral was therefore automatic but the parties were able to object to the
referral. Where one or both parties objected, the matter would be heard by a

366
At pp. 45“6.
367
CEDR Response to LCD Discussion Paper on Alternative Dispute Resolution, February 2000.
368
See M. Roberts, ˜Voluntary Participation in Family Mediation™, 36 Family Law, January 2006,
pp. 57“61. (The article ends with the words: ˜with compulsion, mediation will cease to be the
kind of process we now commonly understand it to be™.)
369
www.attorneygeneral.jus.gov.on.ca/english/manmed/exec_summary_recommend.pdf. The
Ontario Mandatory Mediation Programme which started in 1999 applied to non-family
cases in Ontario and Toronto. The evaluation was based on data collected from over 3,000
mediations. The results showed signi¬cant reductions in the time taken to dispose of cases,
lower costs, earlier settlement and considerable satisfaction of both litigants and lawyers. (See
S. Prince, ˜Mandatory Mediation: The Ontario Experience™, 26 Civil Justice Quarterly, 2007,
pp. 79“95.)
370
The Press Release of 24 March 2004 said that the pilot was based on the Ontario scheme and
that it would run for twelve months from April.
149 Alternative dispute resolution (ADR)


District judge. The press notice stated that if the judge decided that the case
should nevertheless go for mediation and one of the parties still declined to
accept the ruling, ˜they risk being liable to costs under existing case law and
CPR 44.5™.
The DCA commissioned an evaluation of the scheme which it was hoped
after a year would be based on around a thousand cases, but in May 2004, only
weeks after the scheme began, the Court of Appeal gave its decision in Halsey v.
Milton Keynes NHS Trust (above) holding that the courts had no power to order
cases to go to mediation. The decision in Halsey e¬ectively wrecked any chance
that the scheme had of testing the question of compulsion or quasi-compulsion
to mediate. In the event, as many as 80 per cent of those referred to the scheme
opted out, with the result that the number of cases in the evaluation was only a
quarter of what had been expected.
At the time of writing, the evaluation report by Professor Genn (Mediating
Civil Disputes: Evaluating Court Referral and Voluntary Mediation) was in man-
uscript.371 The draft report showed an overall settlement rate of 42 per cent. (It
was 55 per cent for the cases where there had been no objection to mediation
and 33 per cent for the cases where both parties had objected but had been per-
suaded to undertake mediation. Where mediation occurred after one party had
objected, the settlement rate was 50 per cent.)
The settlement rate in the voluntary schemes in Birmingham, Exeter and
Guildford was 64 per cent, 40 per cent and 56 per cent respectively.
Whether the DCA (and the Treasury) considers that these ˜success™ or ˜failure™
rates of mediation are such as to warrant greater e¬orts to push litigants toward
mediation remains to be seen.
In June 2006 the Technology and Construction Court (TCC) started a con-
troversial pilot scheme under which the judges would mediate in construction
cases. The very idea of the scheme provoked criticism not only from lawyers but
also from mediators.372


371
It dealt with both the ARM scheme and with the voluntary mediation programme that
had been running at the Central London county court (now the Central London Civil
Justice Centre) since 1996 and that had previously been evaluated by Professor Genn in
1998.
372
The Lawyer, 5 June 2006, reported the start of the pilot on p. 1 under the heading ˜uproar as
TCC hands judges mediation role™. Solicitors, arbitrators and mediators were reported as
describing it as ˜a terrible idea™. The Technology and Construction Solicitors™ Association
(TECSA) were said to be against it because judges were not good at mediation. The judges
were to have special training in mediation but it has to be said that the mediating role is
signi¬cantly di¬erent from that of a judge. The Lawyer, commenting editorially, quoted
Australia™s leading mediator, former Chief Justice, Sir Laurence Street: ˜the involvement of a
custodian of power as mediator imports the real risk of a party feeling a sense of coercion and
hence disenchantment with the mediated outcome that can re¬‚ect back adversely on the
court™, but the scheme had the support of the Chief Justice. The mediations could be handled
either by the trial judge or by another judge. TECSA™s chairman was quoted as saying that his
group were in favour of the scheme. (˜The system™s only going to be used by consenting adults.
It will be interesting to see if it™s taken up™.)
150 Pre-trial civil proceedings


F U RT H E R R EA D I N G

M. Palmer and S. Roberts, Dispute Processes “ ADR and the Primary Forms of Decision
Making (Cambridge University Press, 2005); S. Roberts ˜Institutionalised
Settlements in England: A Contemporary Panorama™, 10 Williamette Journal of
International Law and Dispute Resolution, 2002, p. 17; P. Brooker and A. Lavers,
˜Issues in the Development of ADR for Commercial and Construction Disputes™,
19 Civil Justice Quarterly, 2000, pp. 353“70; P. Brooker, ˜Commercial and
Construction ADR: Lawyers™ Attitudes and Experience™, 20 Civil Justice Quarterly,
2001, pp. 327“47; S. Shipman, ˜Court Approaches to ADR in the Civil Justice
System™, 25 Civil Justice Quarterly, 2006, pp. 181“218; B. Tronson, ˜Mediation
Orders: Do the Arguments Against Them Make Sense?™, 25 Civil Justice Quarterly,
2006, pp. 412“18.
See also R.L. Abel, The Politics of Informal Justice (Academic Press, 1982); J. Auerbach,
Justice without Law (Oxford, 1983) and 56 Modern Law Review, 1993, the whole
issue entitled ˜Dispute Resolution: Civil Justice and its Alternatives™.
Chapter 3

Pre-trial criminal proceedings




1. Introduction “ the overriding objective
This chapter deals with one of the most important aspects of any legal system “
how suspects are dealt with pre-trial “ and police powers. It o¬ers a great deal
of scope for discussion of matters of both principle and practice. It is also an
area where a considerable volume of empirical work has been done.
The topic is dominated by the central piece of legislation in the ¬eld of police
powers, the Police and Criminal Evidence Act 1984 (known as ˜PACE™).1 This
Act was the result of the Philips Royal Commission on Criminal Procedure
(˜Philips™).2 The Philips Commission™s Report also resulted in the Prosecution
of O¬ences Act 1985 which established the Crown Prosecution Service (˜CPS™).
PACE is accompanied by Codes of Practice. Originally there were four. Now
there are seven: Code A on Stop and Search, Code B on Search of Premises,
Code C on Detention, Questioning and Treatment of Persons in Custody, Code
D on Identi¬cation, Code E on Tape Recording of Interviews, Code F on Visual
Recording with Sound of Interviews and Code G on Arrest. In July 2006 a new
Code H was added setting out the rules (equivalent to those in Code C) for the
detention, treatment and questioning of terrorist suspects.
PACE has been the subject of countless legislative amendments. The Codes
too have been amended from time to time. The latest major revision came into
force on 1 January 2006.
The Codes are the result of extensive consultation by the Home O¬ce with
interested bodies and persons. New codes and major amendments to the
Codes have to be approved by Parliament.3 (The latest version of the Codes are
accessible on www.police.homeo¬ce.gov.uk/operational-policing/powers-pace-
codes/pace-codes.html.)
Technically, the Codes are not law,4 nor can a breach of the Codes be made
the subject of an action for damages or a criminal prosecution against a police

1
On PACE, see M. Zander, The Police and Criminal Evidence Act 1984 (5th edn, Sweet &
2
Maxwell, 2005 and First Supplement, 2006). 1981, Cmnd. 8092.
3
PACE, s. 67(1) as amended by the Criminal Justice Act 2003, s. 11.
4
In McCay [1991] 1 All ER 232 the Court of Appeal said that the Codes had the full authority
of Parliament behind them and that therefore there was statutory authority (sic) for a breach
152 Pre-trial criminal proceedings


o¬cer (PACE, s. 67(10)). Originally PACE (s. 67(8)) provided that a breach of
the Codes was automatically an o¬ence against the police disciplinary code, but
this section was repealed by the Police and Magistrates™ Courts Act 1994.
(Hardly any disciplinary proceedings for breaches of PACE had in fact been
brought.5)
The main formal sanction behind the Codes is that a judge may exclude evi-
dence obtained in breach of the rules or, if the judge fails to do so, the appeal
court may quash a conviction (s. 67(11)). As will be seen below (p. 480), this
has happened often.
Reference is made in this chapter to the famous (or infamous) Eleventh
Report of the Criminal Law Revision Committee (CLRC), published in June
1972.6 This report made a number of fundamental and highly controversial
recommendations for changes in the rules of evidence and procedure in crimi-
nal cases. The CLRC™s report was received with such a volume of criticism,
notably on the problem of the right of silence, that its recommendations
(including some that were not controversial) were not implemented at the
time.7 However, many of its recommendations, including, above all, those on
the right to silence, were implemented years later.
This chapter also deals extensively with the Report of the Runciman Royal
Commission on Criminal Justice (˜Runciman™). The Runciman Commission
(of which the writer was a member) was announced in 1990 on the day that the
Birmingham Six had their convictions quashed. It reported in 1993.8 The writer
was also responsible for the Crown Court Study which was the Royal
Commission™s main piece of research.9
The latest major report in this area was Lord Justice Auld™s Review of the
Criminal Courts of England and Wales published in October 2001 (˜Auld™).10 The
Government gave its response to the Auld Review in the White Paper Justice for
All.11The Criminal Justice Act 2003 gave e¬ect to many of its proposals. The

Footnote 4 (cont.)
of the normal hearsay rule! This was a case of Homer nodding. The Codes have no statutory
authority.
5
See Report of the Runciman Royal Commission on Criminal Justice, 1993, p. 48, para. 102.
6
Evidence, General, Cmnd. 4991.
7
See M. Zander, ˜The CLRC Evidence Report “ a Survey of Reactions™, Law Society™s Gazette, 7
October 1974.
8
Cm. 2263. For a critical assessment of the Runciman Commission™s Report see for instance
Criminal Justice in Crisis (eds. M. McConville and L. Bridges, Edward Elgar, 1994).
9
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
Research Study No. 19, 1993). The study was based on questionnaires addressed to the
participants in every completed case in a two-week period in every Crown Court in the
country. Questionnaires were completed by the judge, the prosecution and defence barristers,
the CPS, the defence solicitor, the police, the court clerk, the jurors and the defendant. There
were some 3,000 cases in the sample.
10
The 686 page report is accessible on www.dca.gov.uk “ Major Reports. For appraisal of the
Auld Report see, for instance, the April 2002 issue of the Criminal Law Review. See also the
writer™s seventy-¬ve page response accessible on www.dca.gov.uk “ Major Reports/Auld
11
Report/Comments received. Cm. 5563, July 2002.
153 Introduction “ the overriding objective


Criminal Justice Act 2003 also implemented changes to PACE recommended by
the Joint Review of PACE and the Codes of Practice by the Home O¬ce and the
Cabinet O¬ce published in November 2002.12
In August 2004 the Home O¬ce published a consultation paper entitled
Policing: Modernising Police Powers to Meet Community Needs.13 Many of its pro-
posals were included in the Serious Organised Crime and Police Act 2005.
One of the recommendations of the Auld Report was that there should be a
Criminal Procedure Code: ˜what is needed is . . . a concise and simply expressed
statement of the current statutory and common law procedural rules and the
product of the present overlay of Practice Directions, codes of guidance and the
like. It should be in a single instrument and laid out in such a form that it, the
Code, can be readily amended without constant recourse to primary legislation
and without changing the “geography” or the familiar paragraph and section
numbers governing each topic™.14
This recommendation was taken up. The Criminal Procedure Rules came
into force on 4 April 2005.15 They are arranged in ten main subject divisions,
starting with ˜General matters™ and then proceeding chronologically from
˜Preliminary proceedings™ to ˜Appeals™ and ˜Costs™.
The new rules are more than a consolidation. They introduced a new ˜over-
riding objective™ equivalent to the ˜overriding objective™ in the CPR (p. 48
above):

The overriding objective
(1) The overriding objective of this new code is that criminal cases be dealt with
justly.
(2) Dealing with a criminal case justly includes “
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article
6 of the European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping
them informed of the progress of the case;
(e) dealing with the case e¬ciently and expeditiously;
(f) ensuring that appropriate information is available to the court when
bail and sentence are considered; and
(g) dealing with the case in ways that take into account “

12
For the text of the Joint Report see www.cabineto¬ce.gov.uk/regulation/publications/
archive.asp. For critical commentary see M. Zander, ˜The Joint Review of PACE: a Deplorable
13
Report™, 153 New Law Journal, 14 February 2002, p. 204. www.homeo¬ce.gov.uk.
14
Auld, para. 274, p. 509.
15
SI 2005/384. They are available online both on the HMSO and on the DCA™s Websites:
www.hmso.gov.uk and www.dca.gov.uk respectively. For commentary see P. Plowden, ˜Make
Do and Mend, or a Cultural Evolution?™ 155 New Law Journal, 2005, p. 328 and ˜Case
Management and the Criminal Procedure Rules™, ibid, p. 416; A. Keogh, ˜A Criminal
Revolution™, Law Society™s Gazette, 16 June 2005, p. 36. They were the subject of an editorial in
the Criminal Law Review, 2004, pp. 397“400.
154 Pre-trial criminal proceedings


(i) the gravity of the o¬ence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others
a¬ected, and
(iv) the needs of other cases.

1.2 The duty of the participants in a criminal case
(1) Each participant, in the conduct of each case, must “
(a) prepare and conduct the case in accordance with the overriding objec-
tive;
(b) comply with these Rules, Practice Directions and directions made by
the court; and
(c) at once inform the court and all parties of any signi¬cant failure
(whether or not that participant is responsible for that failure) to take
any procedural step required by these Rules, any Practice Direction or
any direction of the court. A failure is signi¬cant if it might hinder the
court in furthering the overriding objective.
(2) Anyone involved in any way with a criminal case is a participant in its
conduct for the purposes of this rule.

1.3 The application by the court of the overriding objective
The court must further the overriding objective in particular when “
(a) exercising any power given to it by legislation (including these Rules);
(b) applying any Practice Direction; or
(c) interpreting any rule or Practice Direction.
Rule 1.1(a) equates convicting the guilty with acquitting the innocent. This
seems at variance with the traditional view that it is even more important that
an innocent person be acquitted than that a guilty person be convicted “
expressed most clearly in the requirement that proof of guilt must be beyond a
reasonable doubt.
Again, rule 1.1(b) in requiring fairness to both prosecution and defence
obscures the fact that the two sides are hardly on an equal footing, do not have
equal resources and do not have an equal interest in the outcome of the case.
Rule 1.1(c) does speci¬cally recognise the rights of the defendant.
Rule 1.1(g) introduces a notion of proportionality into the criminal justice
process by requiring that the case must be dealt with in a way that takes account
of the gravity, complexity and seriousness of the case as well as the ˜needs of
other cases™. It has been suggested that this could be interpreted to permit
˜justice on the cheap™ for matters where the penalty is low or where courts have
to deal with many other cases without taking into account the fundamental
principle that the trial must be fair.16
Rule 1.3 regarding the duty of the court to advance the overriding objective
is neither surprising nor controversial. The same cannot be said of rule 1.2. This

16
See P. Plowden, n. 15 above at p. 329.
155 Introduction “ the overriding objective


not only requires each participant in criminal cases to prepare and conduct the
case in accordance with the overriding objective, but in rule 1.2(c) lays on par-
ticipants a novel duty to inform the court of ˜any signi¬cant failure™ whether of
their own or of any other participant which might hinder the court in further-
ing the overriding objective.
The courts have made it clear that where there is a failure to comply with pro-
cedural rules the court must consider whether Parliament intended the under-
lying act to be invalid. Generally this would not be the case. In that situation the
only issue is whether there is prejudice to the defence. If not, the procedural
failing is not to be allowed to thwart the overriding objective of the rules to
convict the guilty and acquit the innocent.17


Evaluating criminal justice systems
The terms of reference of the Philips Royal Commission were: ˜having regard
both to the interests of the community in bringing o¬enders to justice and to
the rights and liberties of persons suspected or accused of crime and taking into
account also the need for the e¬cient and economical use of resources™, to con-
sider whether changes were needed in the system. The Philips Commission
referred frequently to the need to strike a fundamental balance between the
interests of the suspect and of the prosecution.
The terms of reference of the Runciman Royal Commission required it to
˜examine the e¬ectiveness of the criminal justice system in England and Wales
in securing the conviction of those guilty of criminal o¬ences and the acquittal
of those who are innocent, having regard to the e¬cient use of resources™.
The terms of reference of Lord Justice Auld™s inquiry, somewhat narrower
than those of Philips and Runciman, were to inquire into ˜the practices and pro-
cedures of, and the rules of evidence applied by, the criminal courts at every
level, with a view to ensuring that they deliver justice fairly, by streamlining all
their processes, increasing their e¬ciency and strengthening the e¬ectiveness of
their relationships with others across the whole of the criminal justice system,
and having regard to the interests of all parties including victims and witnesses,
thereby promoting public con¬dence in the rule of law™.
Super¬cially, the di¬erent terms of reference of the three inquiries might
suggest that each had a di¬erent agenda, but the essence of each was the same.
Sensible assessment of the criminal justice system unavoidably has to take
account of the proper concerns of all the relevant interests. The most obvious
are those of the prosecution and of the defence and the need to achieve due

17
Ashton [2006] EWCA Crim 794, [2006] Crim LR 1004. The cases considered included Soneji
[2005] 3 WLR 303; and Sekhon [2003] 1 WLR 1655. The commentary in the Criminal Law
Review described the decision in Ashton as ˜one of the most striking examples of the sea-
change in judicial attitude in recent years to the correct approach to remedying procedural
¬‚aws in the criminal process.™ The new approach was ˜far less likely to yield to a defence
submission for a case to be discharged or stayed as an abuse of process™ (pp. 1006“7).
156 Pre-trial criminal proceedings


economy and e¬ciency. Auld™s terms of reference added the interests of the
victim and witnesses. Both of these interests have come to the fore even more
strongly since the publication of the Auld Report.
On some topics primary weight is given to the interests of the prosecution
(sometimes called the ˜crime control™ perspective); on others to the interests of
the suspect (sometimes called the ˜due process™ perspective); on others again to
the need for economy and e¬ciency. The civil libertarian will strike the balance
di¬erently from the police o¬cer. The task of an external inquiry such as that
of a Royal Commission is to consider all the evidence and then to reach a con-
sidered view as to the pros and cons of all the arguments.18
For the contrasting view that principle rather than a search for a proper
balance should guide reform of criminal justice systems, see A. Ashworth and
M. Redmayne, The Criminal Process (3rd edn, OUP, 2003) Ch. 3. See also
Professor Ashworth™s Hamlyn lectures, Human Rights, Serious Crime and
Criminal Procedure (Sweet & Maxwell, 2002).
The ¬rst substantive topic dealt with here is the questioning of suspects.


2. Questioning of suspects by the police

The importance and quality of police questioning
The questioning of suspects plays a central part in the police handling of the
functions of prosecution.19 A Home O¬ce study of 12,500 custody record
forms and observation over a total of 4,000 hours in twenty-¬ve police stations
showed that six out of ten detainees were interviewed in custody.20 The over-
whelming majority (96 per cent) were interviewed only once. Even in serious
cases only one in ¬ve was interviewed more than once.
It was not always so. The 1929 Royal Commission on Police Powers and
Procedure said that the law then was that where an arrest was necessary the con-
stable should make it clear that the person was under arrest on a speci¬c charge

18
The ¬fteen person Philips Royal Commission and the eleven person Runciman Royal
Commission both consisted of a mixture of people knowledgeable about the system (judges,
lawyers, police o¬cers, academics etc.) and lay people with no prior experience of the
criminal justice system. In both cases the chairman was a layman. Despite their mixed
membership, both Royal Commissions were unanimous in the overwhelming majority of
their recommendations. By contrast, although Lord Justice Auld had an advisory group, he
basically conducted his inquiry on his own. (As to the desirability of that see M. Zander,
˜Reforming the Criminal Justice System: Too Di¬cult to be Left to One Individual?™ 151 New
Law Journal, 30 November 2001, p. 1774.) Both Philips and Runciman commissioned
substantial empirical research reports. Auld generated virtually no new research.
19
See for instance M. McConville and J. Baldwin, Courts, Prosecution and Conviction (Clarendon
Press, 1981) Ch. 7; B. Mitchell, ˜Confessions and Police Interrogation of Suspects™, Criminal
Law Review, 1983, p. 596; M. McConville, A. Sanders and R. Leng, The Case for the
Prosecution (Routledge, 1991) Ch. 4.
20
T. Bucke and D. Brown, In police custody: police powers and suspects™ rights under the revised
PACE codes of practice, 1997, Home O¬ce Research Series No. 174 (˜Bucke and Brown 1997™).
157 Questioning of suspects by the police


and ˜thereafter he should not question the prisoner . . . although he should
make a note of anything he says and should bring him straight to the police
station for formal charging™ (para. 137). Whether this is what actually happened
is a di¬erent question but that was the formal position. It was only recently that
the courts directly recognised that the police could hold a suspect for question-
ing (see p. 207 below).
Various studies have found that over half of suspects in detention confess
when questioned. In Bucke and Brown 199721 confessions were made by 58 per
cent. White suspects confessed more often than Afro-Caribbean and Asian sus-
pects “ 60 per cent compared with 48 per cent and 51 per cent respectively.
Having legal advice is associated with fewer confessions. Two-thirds (66 per
cent) of those who had not had legal advice confessed compared with 47 per
cent of those who had had legal advice.22
Until quite recently the police received little or no training in questioning.
Research conducted for the Home O¬ce by Professor John Baldwin of
Birmingham University showed that the results were not unduly impressive.
The research was to inquire into video taping of interviews but a side product
was the ¬rst independent assessment of the quality of police interviews.23
Overall, Baldwin found that 64 per cent of interviews were conducted ˜com-
petently™, 25 per cent were ˜not very well conducted™ and 11 per cent were con-
ducted ˜poorly™.24
The main weaknesses identi¬ed were: ˜a lack of preparation, a general inep-
titude, poor technique, an assumption of guilt, unduly repetitive, persistent or
laboured questioning, a failure to establish relevant facts and the exertion of too
much pressure™ (ibid):
The image of police interviewers as professional, skilled and forceful interroga-
tors scarcely matched the reality. O¬cers sometimes emerged as nervous, ill at
ease and lacking in con¬dence. Even in the simplest cases, they were unfamiliar
with the available evidence, and the video cameras often showed them with their
eyes glued to a written statement, clearly unacquainted with its contents . . .
Many o¬cers enter the interview room with their minds made up. They treat the
suspect™s explanation, if they bother to listen to it at all, with extreme scepticism
from the outset. They are not predisposed, either from training or temperament,
to think that they might be wrong. The questions asked (often leading questions
starting as they do, from an assumption of guilt) merely seek to persuade suspects
to agree to a series of propositions. If this is unsuccessful, discussion tends to be
unhelpfully polarised, with claims and counterclaims, allegations and denials
following a familiar circular path, descending often into a highly repetitive series
of questions . . . Some o¬cers adopted an unduly harrying or aggressive


21 22
Ibid. Ibid at pp. 33“4.
23
The study was based on 400 video recordings and 200 audio recordings of interviews
conducted by the police in the West Midlands, West Mercia and London “ J. Baldwin, Video
Taping Police Interviews with Suspects “ an Evaluation (Home O¬ce, Police Research Series,
24
Paper No. 1, 1992). Baldwin, Table 3, p. 14.
158 Pre-trial criminal proceedings


approach in interviewing, and though this arose in a relatively small number of
cases, these were the ones in which the present writer felt greatest unease about
the outcome, particularly where they involved juveniles and young persons.
Another part of the mythology is that the great majority of interviews are with
suspects who are awkward or aggressive. There are of course some interviews
which are of this nature, but the great majority are not. Most involve relatively
simple and straightforward matters with reasonably compliant suspects.
Because o¬cers assume the opposite to be the case (as do most training
manuals), training often fails to deal with the commonplace and the humdrum
. . . In only twenty-seven cases (4.5 per cent of the whole sample) did the o¬cer™s
manner seem unduly harsh or aggressive. In almost two-thirds of all cases, the
style of interviewing could not even be described as confrontational, since no
serious challenge was made to what a suspect was saying . . . Fewer than one in
eight suspects sought to exercise their right to remain silent in any signi¬cant
way, and taking interviews as a whole, it emerged that four out of every ¬ve were
with such co-operative or compliant individuals that they should have presented
no serious di¬culties to a moderately competent interviewer.25
Professor Baldwin suggested that ˜the importance of this simple ¬nding can
scarcely be overstated™.26
Partly in response to this research and partly because of the concerns about
police misconduct in questioning of suspects leading to miscarriages of justice,
the police service commissioned outside experts to help it design a new inter-
viewing training package. In its report in 1993 the Runciman Royal Com-
mission referred with approval to this development. The new approach had
been signalled in a Home O¬ce circular27 which stated, inter alia: ˜the role of
investigative interviewing is to obtain accurate and reliable information from
suspects, witnesses or victims in order to discover the truth about matters under
police investigation . . . Investigative interviewing should be approached with
an open mind . . . When questioning anyone a police o¬cer must act fairly in
the circumstances of each individual case™.28
A new training package based on these principles, involving a full week of
training, was introduced in 1993. All police o¬cers were supposed to be
exposed to the course.29 The essence of the interviewing method, one might say,
was less talking and more listening!

25
At pp. 14“18.
26
At p. 18. For other writings by Professor Baldwin on this research see 141 New Law Journal, 8
November 1991; ˜Police Interview Techniques: Establishing Truth or Proof?™, British Journal of
Criminology, 1993, pp. 325“52. For an account of research comparing the strikingly di¬erent
tenor of police interviews as re¬‚ected in police summaries (pre-PACE) and tape recordings
(post-PACE) see I. Bryan, ˜Shifting Images: Police“Suspect Encounters during Custodial
Interrogations™, 17 Legal Studies, 1997, pp. 215“33.
27 28
22/1992, dated 20 February 1992. Runciman, p. 13, para. 21.
29
For an article on investigative interviewing by one of those most responsible for its
introduction see Chief Superintendant T. Williamson, ˜Policing™, Winter 1992, pp. 286“99.
See also the series of articles by Detective Sergeant G. Shaw in nine consecutive issues of Police
Review starting 5 January 1996.
159 Questioning of suspects by the police


The danger of false confessions
The phenomenon of false confessions is now widely recognised and accepted.
One of the world™s leading authorities on the subject identi¬ed four di¬erent
types of false confessions:
• False confessions borne of a desire to attract publicity or notoriety, or to
relieve guilt about real or imagined misdeeds, or from an inability to distin-
guish between reality and fantasy.
• False confessions to protect others.
• False confessions to gain a short-term advantage such as respite from ques-
tioning or bail.
• False confessions which the suspect is persuaded by the interrogator are
true.
See further G.H. Gudjonsson, The Psychology of Interrogations, Confessions and
Testimony (Wiley, 1992) and ˜The Psychology of False Confessions™, 142 New Law
Journal, 18 September 1992, p. 1277. The same author later published The
Psychology of Interrogations and Confessions: A Handbook (Wiley, 2003) described
in a review as ˜seminal, comprehensive, dispassionate, sound, scholarly and most
crucially, authoritative™.30
For a useful review of the problem of false confessions and of the measures
taken to counter the problem in the UK and the US (plus relevant literature) see
J. Lowenstein, ˜The Psychological and Procedural Issues in the Occurrence of
False Confessions by Vulnerable Individuals™, 170 Justice of the Peace, 25 March
2006, pp. 207“11.


The Judges™ Rules
For most of the last century the process of questioning suspects was governed
principally by the Judges™ Rules “ rules formulated by the judges of the Queen™s
Bench Division in the form of a brief code. They were not law, and breaches of
the Judges™ Rules did not necessarily give rise to any adverse consequence for the
police. Evidence obtained in breach of the Judges™ Rules could in theory be held
to be inadmissible, but this hardly ever occurred unless the defendant™s state-
ment was held by the court to be ˜involuntary™ (see pp. 471“72). There was also
the theoretical possibility that a breach of the Rules (especially one revealed in
court) could be made the occasion for police disciplinary proceedings against
the o¬cer concerned. That too, however, was very rare.
The Judges™ Rules had three parts. There was, ¬rst, the preamble which set out
¬ve principles that were said to apply generally: (1) that citizens had a duty to
help the police discover and apprehend o¬enders; (2) that no one could be com-
pelled to come to the police station otherwise than by arrest; (3) that anyone in

30

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