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JILT 1996 (1) - Lord Woolf - Fast Track

ACCESS TO JUSTICE

FAST TRACK PROJECT
CONSULTATION PAPER: JANUARY 1996

INTRODUCTION

1. Lord Woolf’s Interim Report on Access to Justice proposed a new system of civil litigation in which the courts would take an active part in managing and monitoring the progress of cases. Defended cases would be allocated, for purposes of case management, to one of three “tracks”:

a) small claims (with an increased financial limit of £3,000); b) a new fast track, with limited procedures and costs proportionate to the amount in issue (for relatively straightforward cases up to about £10,000); and c) a new multi-track (for more complex cases over £10,000).

2. Lord Woolf’s final report will be submitted to the Lord Chancellor in the summer of 1996, and will be accompanied by the draft of a single, simpler code of procedural rules for High Court and county court cases. Lord Woolf was asked by the Lord Chancellor to develop the procedures and the costs regime for the Fast Track. The proposals were intended to meet the needs of individuals and businesses for a more proportionate, speedy and certain method of resolving straightforward disputes of limited value.

3. The procedures set out in this paper have been developed by Lord Woolf’s Fast Track Working Group which includes barristers and solicitors who act for individual litigants, businesses, advice agencies and law centres and who handle the broad range of work for which the fast track is intended. The Working Group also includes two District Judges and officials from the Court Service and Lord Chancellor’s Department Headquarters. The procedures it recommends to meet the outline proposals for the fast track are set out in this issues paper.

The Way Forward

4. The Interim Report makes it clear that the benefit of the fast track will depend on devising a straightforward procedure which is readily understood by all participants in the system and which will ensure that the costs of such litigation are commensurate to the issue at stake. The procedure must be:

a) practicable for litigants, practitioners and the courts; and b) predictable in its requirements of litigants and their professional advisers.

5. In developing the procedure the Working Group has taken into account what ordinary litigants want the system to provide for them. These are:

a) fairness
b) economy
c) simplicity
d) speed
e) certainty.

6. One of the most important features of the fast track is certainty over costs, including any liability for the other party’s costs, and the procedures outlined in this paper are designed to achieve that. Certainty of procedure is essential to underpin the limited costs structure that the Working Group is starting to develop. The costs structure will be developed on the basis of the procedural framework outlined here. It will be adapted to take account of feedback from this consultation exercise.

Q1 The Working Group want views on whether the procedures outlined in the paper will meet the needs of litigants for fairness, economy, simplicity, certainty and speed.

7. Consultees are invited to let the Secretariat have their comments on the proposed procedural framework by 11 March 1996. The address to which comments should be sent is:

Woolf Inquiry Team
Room 6.21 Selborne House
54/60 Victoria Street
London SW1E 6QW

Tel (0171) 210 0618
Fax (0171) 210 0725

THE DETAILED PROCEDURAL PROPOSALS

Aim of the Fast Track

1. The aim of the fast track is to provide a speedy, simple and cost effective procedure for dispute resolution for the great majority of defended actions across the board within the monetary band £3,000 - £10,000. Personal injury cases up to £10,000 will also be allocated to the fast track. The fast track will also deal with non-monetary claims such as injunctions, declarations and orders for specific performance which are not suitable for the small claims procedure. Undefended debt actions will not be affected by the present proposals.

Scope

2. The outline proposals for the fast track proposed in the Interim Report are:

a) a set timetable of 20 -30 weeks;

b) a “warned week” or fixed date from the outset of the case;

c) limited discovery;

d) maximum trial length of 3 hours;

e) no oral evidence from experts;

f) limited oral evidence from witnesses as to fact; and

g) standard fixed costs.

3. The Working Group has aimed to develop procedures which should enable the vast majority of cases up to £10,000 to be progressed fairly within the fast track. There may be classes of case which are inherently so complex that they might not normally be accommodated within the simplified fast track procedure. Most medical negligence cases are unlikely to fit within the constraints of the standard fast track procedure. A separate Working Group is developing proposals for the handling of medical negligence cases and is issuing a separate consultation paper. In addition there are actions such as jury trials which, because of the need for the oral presentation of evidence, are inherently unsuitable for the fast track. There are also some categories of case, such as undefended fixed date possession and return of goods actions, which already have an existing straightforward procedure that would not be speeded up by the new procedure. These cases will continue to follow their separate procedure.

4. In addition, individual cases which do not fall into any of these categories might need to be transferred to the multi-track but these will have to meet strict criteria to do so.

5. Cases which would not normally be dealt with on the fast track are:

a) medical negligence cases;

b) jury trials;

c) fixed date possession and return of goods actions until defended;

d) individual cases meeting the criteria for transfer out.

Q2 The Working Group would like views on whether the broad exceptions to the scope of the fast track have been correctly identified.

Allocation to Track

6. Consideration of the appropriate track will take place at the stage the defence is filed. The Interim Report proposes that a common procedure be adopted for all cases, in both the High Court and county court, which will require defences to be filed in court.

7. The Interim Report recommended that the Master or District Judge would have the discretion to allocate to the fast track other defended actions which fall outside the monetary band. For example:

a) cases which would normally fall to be considered under the small claims regime but which raise complexities which are more suitable for treatment under the fast track procedure; or

b) cases where the amount at stake is above the designated band but the case raises no issues of significant complexity to warrant the case management treatment afforded by the multi-track procedure.

8. Parties may ask the court to transfer a case into or out of the fast track but the decision will rest with the court which may also decide, of its own motion, to transfer a case. Normally applications to transfer cases will be dealt with on paper and the parties will not be required to attend a hearing.

Q3 The Working Group would like views on the arrangements for allocation of cases to and from the fast track.

Criteria for Exclusion from the Fast Track

9. The suggested criteria for exclusion from the fast track are where:

a) the case raises issues of public importance; or

b) might be regarded as a test case; or

c) the case properly involves a multiplicity of experts; or

d) the court requires significant oral evidence either from witnesses or from experts and this cannot be accommodated within the fast track hearing time.

Q4 The Working Group would like views on whether the criteria for exclusion from the fast track are appropriate.

The Timetable

10. The Interim Report recommended that there should be a set timetable of 20 to 30 weeks with a “warned week” or fixed date for trial allocated from the outset with a definite trial date notified not later than eight weeks prior to trial.

11. This recommendation was based on the experience of Liverpool County Court which pioneered the use of timetables, and has now been further developed by Central London County Court which also currently runs a timetable system. The Working Group consider that this timetable should be appropriate for the great majority of cases.

12. Because of varying court circumstances the Working Group consider that the District Judges should have discretion to vary the timetable. This should help to accommodate local listing difficulties in providing fixed dates for trial.

13. Where the needs of the parties or the nature of the case make it appropriate, the overall period can be significantly shortened. There will also be the facility to apply for summary disposal, either on the application of one of the parties, or on the court’s own motion. Split trials will also be possible with, for example, liability settled early under the fast track while quantum remains to be determined in due course depending upon a medical prognosis that is not yet settled.

14. The aim of the timetable is to move cases towards trial through a sequence of procedures which ensure that each party provides the appropriate information to the opposing party at standard specified stages in the timetable. There is a programme of preparation set down by the court to which parties will be required to adhere. In most cases the court will prescribe the standard timetable which is set out in paragraph 17 below. In a few cases, the court may vary the standard timetable and prescribe a different version to meet the particular demands of the case. This may be done when the District Judge considers the papers when the defence is returned or at a later stage if a party is in genuine difficulties over meeting the standard timetable.

15. Parties will always be working to a timetable: either the standard timetable or a varied timetable. A specific date will be set for each stage so that parties, practitioners and the courts are clear as to the key dates on the timetable. Any party wishing to vary the timetable must apply in advance to do so. Even where such applications are granted the trial date will only be moved in the most exceptional circumstances. In addition the courts will not be making orders “to adjourn generally” but will always adjourn to a fixed date.

16. These new timetables will be set out using specific dates, e.g. “1 March 1996”, rather than in periods of 14 days or 28 days, as at present.

17. The court monitored timetable will start to run from service of the order for directions. A period of 28 days will be allowed for discovery, with a further period of 28 days ( 4 weeks) for exchange of witness statements and experts reports. The court will send the parties a listing questionnaire 70 days (10 weeks) from the start of the timetable. This must be returned within 84 days (12 weeks) from the start date. If it is not returned the court will call the parties and their legal representatives in for a hearing. A warned week for the trial will be given from the start in the directions order. The actual trial date will be fixed within the warned week and will be given at least 6 weeks before the hearing.

Q5 The Working Group would like views on the feasibility of the timetable taking account of the new procedure outlined in this paper.

Sanctions

18. No timetable can be effective unless it is backed by effective sanctions for non-compliance. Sanctions, to be effective and credible, must be:

a) fair;

b) proportionate to the “offence”;

c) simple to apply; and

d) not create delay; and

e) the onus should be on the wrongdoer to apply for relief rather than for the other party to apply for the sanction to be enforced.

In addition sanctions should not lead to more litigation.

19. Possible sanctions that could be available to the courts handling fast track cases include:

a) costs sanctions against a party;

b) striking out the whole case (or debarring particular evidence or issues);

c) specific sanctions related to the particular “offence”; and

d) fines or similar penalties on the practitioners.

20. The new procedure will avoid the difficulties associated with CCR Order 17 where cases are struck out without warning. Instead the parties and the court will know from the earliest stages of the litigation when the case is scheduled for hearing and the parties will be expected to adhere to the timetable. The listing questionnaire will enable the court to ensure this is done.

21. The Working Group is continuing to consider a range of sanctions but has already suggested that the sanction for failing to return the listing questionnaire is for the party and legal representative in default to be called in to the court for a directions appointment (paragraph 61). The Working Group has also proposed that parties who are unable to meet any stage of the timetable should be required to make an application in advance for an extension of time: failure to do so will attract a sanction.

Q6 The Working Group would like views on the use of sanctions and how to secure compliance with the timetable.

Costs

22. The Interim Report envisaged that fast track costs would normally represent a percentage of the claim and that there would be a basic fixed minimum of costs. The aim is to produce a costs regime for the fast track that is characterised by:

a) transparency;

b) certainty of costs for both the successful and unsuccessful party; and

c) in which the total costs are proportionate to the question at issue.

23. There are various options for such a regime including:

a) a single limit for all cases up to £10,000;

b) several broad bands within the £10,000 limit; or

c) a sliding scale of percentages.

Q7 The Working Group would like views on what the basic fixed minimum costs should be based, on the proposals outlined in this paper.

Q8 Are the procedures outlined in this paper sufficient to achieve the transparency, certainty and proportionality required for the fast track?

Q9 Would a percentage scale related to value be most appropriate?

Q10 What is an appropriate approach for non-monetary claims?

THE PRACTITIONERS’ ROLE

Pre-Issue Stage

24. Lord Woolf recommended that the appropriate professional bodies should draw up guidelines or protocols for the pre-issue conduct of legal cases. Protocols are intended to facilitate the settlement of cases without litigation by ensuring that both parties are in possession of relevant information and have a clear idea of the nature of the claim from the earliest possible stage. They will also enable parties to meet the timetable of the fast track by putting them in a good position to identify the issues which need to be litigated from the outset. The advance notice given to the defendant under these agreements will also facilitate him to file a full defence within the 28 days set out in the timetable.

25. Protocols would be agreed between representatives of both claimants and defendants in common areas of business and would cover among other issues the exchange of documents from agreed lists, such as in an employers liability case accident book records and wage slips and experts’ evidence. Protocols would be supported by questionnaires for gathering evidence as mentioneded in paragraph 46 below.

26. The Law Society has already begun work on protocols relating to expert evidence (paragraph 56 below) and both the Housing and Medical Negligence Working Groups are also discussing with practitioners and representatives of both claimants and defendants how to devise pre-issue protocols. Lord Woolf also proposed that the court’s powers in respect of pre-action discovery in personal injury cases should be extended to cover all litigation.

Q11 The Working Group would like views on what areas should be covered by pre-issue protocols.

Q12 The Working Group would like views on whether the court’s powers in relation to pre-issue disclosure should be extended.

The Claim

27. The Interim Report recommends that all actions should begin with a claim to which is annexed a statement of case. It is important that as much information as possible is given in the claim and statement of case to enable the defendant to see the details of the claim against him. This will also enable the court to:

a) allocate defended cases to the appropriate track; and

b) ensure that it contains all the relevant basic information necessary for the court’s computerised records and case management systems.

28. The Interim Report also recommends that claims may be started in any court and that the case will be transferred to the venue most appropriate to the needs of both parties. That decision will be made by the District Judge when he considers the papers after the defence is filed.

Counterclaims

29. Where a counterclaim is made, the District Judge will consider whether the case is to remain in the fast track when the defence to the counterclaim is filed. If the value of the counterclaim is above the band covered by the fast track this will not of itself lead to the case being transferred: the decision will be based on the complexity of the case as a whole.

Q13 The Working Group would welcome views on the handling of counterclaims.

Statements of Case (Pleadings)

30. Lord Woolf made recommendations in the Interim Report designed to improve the standard of “pleading”. The measures may be summarised as:

a) the use of standard form claims where appropriate;

b) a requirement on the defence to reply positively and state expressly where it is unable to do so;

c) scrutiny of statements of case by the court to ensure that they appear to show a claim exists; and

d) a requirement that the parties will have to add a declaration of the truth of the statements they are making to the claim.

31. Both the claim and the defence must set out clearly the facts of the case so the issues to be resolved can be clearly identified. In order to comply with the timetable the parties must do this at the start of the case rather than as it progresses. The aim of the fast track is to remove the need for further and better particulars and interrogatories.

32. In particular the defence should provide detailed answers to the points raised in the claim rather than the current practice of blanket denials. For the defending party to be in a position to do this, more time is required than the present procedure provides. The time for defence has therefore been extended to 28 days. The protocols that Lord Woolf wishes to see developed for the pre-issue stage will assist in ensuring that any letter before action is adequately informative.

33. This new approach will be assisted by the development of best practice guides. One method that the Working Group favours is the use of questionnaires to take instructions and leading to standard statements of case for both claimant and defendant in common types of defended action. These would cover facts and evidence from which the issues can be adduced. This would assist both plaintiffs and defendants in person as well as improving the overall standard of statement of case.

34. The Working Group proposes that a combined form for these common types of case should be developed. This would set out the claim and defence alongside each other in a question and answer booklet format to ensure that points identified in the claim are answered in the defence.

35. The development of best practice guides, using standard questions to assist taking instructions and drafting statements of case, should enable practitioners to meet the procedural requirements more economically. This will be necessary to achieve one of the aims of the fast track procedure which is to provide proportionate and certain costs in these cases.

Q14 The Working Group would like views on standard statements of case, how they should be developed and whether they should be mandatory.

Disclosure (Discovery)

36. The Interim Report recommends that the scope of disclosure (discovery) in fast track cases should be limited to:

a) the parties’ own documents: these are documents which a party relies upon in support of his contentions within the proceedings;

b) adverse documents: these are documents of which a party is aware and which to a material extent adversely affect his own case or support another party’s case.

37. The Interim Report recommends that in stating his claim the claimant must refer to the documents on which he principally relies and that a defendant would be entitled to copies of documents disclosed in a statement of case before serving his defence. Equally the defence must refer to the documents on which it principally relies when the defence is filed.

38. Parties must complete disclosure of their documents within 28 days of the start of the timetable. This step may, however, with the consent of the court and the agreement of the other party, be combined into a single step of disclosure and exchange of evidence from both witnesses of fact and experts. This will depend upon the extent of pre-issue disclosure under the protocols proposed in paragraphs 24 and 25 above.

39. Whatever the extent of previous disclosure, whether pre-issue in accordance with the protocols or as an attachment to the statements of case, each party will be required, in accordance with the set timetable, to certify that all the documents described in paragraph 36 above have been disclosed and to provide, in an acceptable form, the relevant details. Efficient best practice suggests that this might best be done by serving an index plus the copies of the documents listed. Other ways of achieving the same effect might be by :

a) service of lists of documents that have already been disclosed as part of the pre-issue process or statement of case (this will provide assurance that the relevant material has been disclosed); or

b) for discovery and inspection to be combined by providing copies of the relevant documents; or,

c) where this is not practicable, arranging for inspection.

40. In many cases at present, parties have considerable difficulty in obtaining standard documents which are always relevant to the category of case and must always be made available in the end. This is a waste of time, effort and resources. Therefore, in accordance with Lord Woolf’s preference for standard claims and answers, the Working Group recommends that lists are developed to identify key documents which will be disclosed as a standard requirement in specific types of case. For the reasons explained in paragraph 35 in relation to statements of claim the Working Group believe these will assist to control costs and achieve the objective of greater certainty and proportionality of costs.

41. As part of the work that Lord Woolf is proposing on pre-issue protocols (see paragraphs 24 and 25 above) the extent of disclosure pre-issue and what should be disclosed at the issue stage will need to be identified. Greater information at an earlier stage should assist the identification of the issues in dispute enabling the defendant to respond more positively to the claim. In some cases a defendant might not file a defence if he knew the strength of the evidence in support of the claim. But care needs to be taken to ensure that parties are not put to unnecessary work, and thereby incur unnecessary costs.

42. A party who fails to disclose a document that should normally be available in that particular type of action will be required to explain the reason why the document is not disclosed. Parties will be able to make paper applications for specific disclosure if necessary.

43. As with any part of the order for directions, sanctions against non-compliance will be necessary. Any party unable to meet the timetable set out in the directions will be required to apply to the court for an extension before the deadline has expired.

Q15 The Working Group would like views on these arrangements for disclosure.

Q16 The Working Group would like views on the most appropriate sanctions for failing to give disclosure

Witnesses as to Fact

44. The Interim Report recommended that in fast track cases the evidence of witnesses should be handled by way of witness summaries. In most fast track cases witness statements are relatively concise and largely factual. The Working Group preference is therefore for brief witness statements.

45. The timetable sets out that witness statements should be exchanged no later than 56 days after the directions order. Witnesses of fact will give oral evidence but the constraints of the limited hearing time (no more than 3 hours) mean that witnesses will not normally be taken through their statements in detail as this is unlikely to be the most effective use of a party’s share of the time available.

46. A best practice approach of using standard questionnaires will also assist in the preparation of witnesses’ evidence and help to ensure that the issues are properly addressed.

47. The Working Group consider witnesses should be required to annex to their witness statement documents on which they intend to rely.

48. At present witnesses are taken through their statements in detail and these are thus available to press and public. The rules will continue to provide that, where statements are accepted as evidence in a case, the evidence will continue to be available despite the change in the procedure.

Q17 The Working Group would like views on these proposals for handling witnesses and their evidence.

Q18 Could standard questionnaires stand as witness statements?

Expert Evidence

49. A separate consultation paper on expert evidence has been issued by the Inquiry. This section of the paper deals with those issues relating to experts that are specific to the fast track.

50. The most significant recommendation in the Interim Report for cases falling within the fast track is that no oral evidence will be called from expert witnesses.

51. In order to meet the requirements of the fast track it is also proposed that:

a) parties will generally be limited to one expert per side; and

b) in lieu of oral evidence, where a single expert has not been agreed or where, in accordance with the pre-issue protocols joint instructions have not been agreed, then a party may put written questions to the other side’s expert with the consent of the District Judge.

52. The Interim Report advocates the use of a single expert wherever possible. As part of the work on pre-issue protocols lists of experts will be drawn up in whom the legal advisers of both claimants and defendants can have confidence and who can be jointly instructed. For some areas of work where there are a number of experts available these lists may be handled locally: in other areas, where expertise is more limited or uncommon, a national list may be more appropriate.

53. The Working Group suggest that District Judges should have the discretion to call for oral evidence from experts, although it is anticipated that this would rarely be required. It is recognised that unless any oral evidence is limited, the District Judge may deem the case more suitable for the multi-track.

54. The Interim Report makes recommendations to improve the role of expert evidence by:

a) clarifying the role of experts; and

b) giving clear guidance on the preparation of reports.

55. The new approach will require detailed and effective reports from appropriate experts, properly trained in their role of giving evidence, to cover the information required. It will be necessary to avoid excessive, inappropriate and over long reports and the best practice guides should cover standard report presentation.

56. A number of initiatives have been undertaken to develop this new approach to expert evidence. The Law Society has published the Expert Witness Directory and, with the British Academy of Experts, has issued guidelines on experts reports. In addition the Law Society and the British Orthopaedic Association have already drawn up a code of practice for instructing medical experts which includes:

a) a standard format for instructing experts;

b) a standard format for the expert’s report; and

c) agreed time frame for producing reports.

57. In addition the Working Group have proposed that any rules or protocols on instructing experts should also cover:

a) standard reports to list the research literature on which the report is based; and

b) an agreed time frame within which the report is to be completed; and

c) experts not to accept instructions unless they are able to deliver in the time frame of the case.

58. The timetable set out in paragraph 17 above suggests that expert evidence should be exchanged within 56 days of the directions order.

Q19 The Working Group would welcome views on the approach to expert evidence set out above.

Q20 The Working Group would also welcome views on how the costs of experts should be handled under the limited costs regime of the fast track.

THE COURTS’ ROLE

Directions

59. The proposals for the fast track entail the development of suitably tailored standard directions which would link to the timetable for the case. District Judges would thus:

a) see all defences when filed;

b) decide venue;

c) allocate cases to the appropriate track;

d) give the necessary directions;

e) set a timetable for action to be taken; and

f) allocate a hearing week.

60. The timetable will normally be the standard timetable set out in paragraph 17, which also sets out the programme of activities required of the parties.

61. In the order for directions a warned week will be assigned and a fixed trial date will be given when the listing questionnaire is returned.

Q21 The Working Group would like views on the approach to directions outlined above.

Summary Disposal

62. In addition to the usual directions, other options will be available to the District Judge at the directions stage. It will be open to either party to apply for summary disposal and this should be done promptly after a defence is filed. In addition, the court itself may direct a hearing to dispose of the case summarily. The District Judge will have the power to:

a) strike out the claimant’s case as it has no realistic prospect of success;

or

b) enter judgment for the claimant because no valid defence is shown; or

c) dispose of some of the issues in dispute and give directions as to others.

Q22 The Working Group would like views on these proposals for summary disposal of cases.

Listing Questionnaire

63. The timetable set out in the directions requires the parties to prepare the case for trial. The court needs to assess whether a case has met the requirements of the directions and will be ready for trial. In order to obtain the necessary information from the parties the court will issue a listing questionnaire 10 weeks after service of the directions order. Parties will be required to return it within 14 days. The information in the listing questionnaire will enable the court to allocate a fixed trial date for the case. Failure to return the listing questionnaire will lead to legal representatives being required to attend court with their clients with likely costs sanctions for the party in default. This should take place within 16 weeks of the start of the timetable.

Q23 The Working Group would like views on whether the return of the listing questionnaire is the most appropriate point for the court to exercise control over the parties and the adherence to the timetable.

Listing Arrangements

64. The Interim Report recommends that fast track cases should be heard at local county courts although there may be circumstances in which it would be more advantageous for the case to be heard at a civil trial centre, one of the major trial centres recommended in the Interim Report. (It may enable parties to have an earlier hearing date or it may be more convenient bearing in mind public transport facilities). This will enable trials to be heard at the appropriate level for the complexity of the case and create listing flexibility. What is important, however, is that there should be a central listing system within each local group of courts to ensure the most effective use of court and judicial resources and provide the flexibility needed to deal with cases expeditiously. In particular it will be important to ensure that courts are able to provide a hearing at the date and time indicated.

65. Cases allocated to the fast track will generally be tried by District Judges unless it is more practicable or appropriate for the case to be heard by a Circuit Judge. District Judges will therefore have concurrent jurisdiction with Circuit Judges for fast track cases.

Q24 The Working Group would like views on these listing arrangements.

Appeals

66. Work on appeals is being taken forward outside the Fast Track Working Group but the Working Group consider that in order to facilitate the speed and certainty which are such essential features of the fast track then procedural appeals should be limited.

Q25 The Working Group would like views on what the appeal structure should be for both interlocutory and final appeals.

Q26 The Working Group would like views on how appeals might be handled to reduce costs, delays and uncertainty to a minimum within the limited costs and swift procedure of the fast track.

ADR

67. The Interim Report makes a number of recommendations designed to alert potential litigants to alternative ways of resolving disputes. This is particularly relevant to such cases as consumer disputes over faulty goods or services and neighbour disputes which are likely to find their way into the fast track.

68. Claimants will, therefore, need to be alerted to the possibility of an alternative method of dealing with their claim at the appropriate stage of litigation. The Lord Chancellor’s Department has produced a booklet on Alternative Dispute Resolution opportunities which is available from courts.

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