This paper explains how the overriding objectives defined by Lord Wool identified a problem in the old rules and provided the problem solution. Lord Woolf outlined the overriding objective in an article known as Access to Justice. This paper shows how they led to a reduction of high legal costs that were common for the old judicial system. Old judicial systems incurred high costs since preparation for a case took place at the late stages. With the introduction of overriding objectives, pre-action protocols were enforced. Pre-action protocols ensured that parties cooperated before their case went to trial. If the parties decide to drop a case before it goes to trial because of the pre-action protocols, legal costs will be saved. Using the overriding objectives, high legal costs are saved since it encourages the use of active case management. It also shows how the overriding objectives helped to reduce delays that were common for the old judicial system. Such delays were caused by the fact that the parties in a particular case were not given the exact time that their case would take place. The overriding objectives state that all parties in a case should be given the exact date that their trial would occur. The paper also explains how the splitting of cases into three classes known as small claims, fast track, and multi-track cases helped to reduce delays in the court cases. After this, it shows how the overriding objective reduces the need for going to trial that was common for old judicial systems. Part 36 was formed after the benefits perceived from the overriding objectives. Part 36 allows each of the parties in a particular case to have the right of making an offer before actual proceedings start. It encourages parties to settle early before a case goes to trial. Lastly, it explains the criticism that the overriding objective received.
Lord Woolf is known for the reforms that he provided for the civil procedures applicable in the Court of Appeal, County Courts and High Court of Justice in Wales and England. In 1996, he published a report known as Access to Justice. In this report, he outlined the principles that the civil justice system of both England and Wales were to adopt in an attempt of promoting justice and fairness in these countries. He argued that the civil justice system had many defects since it was too expensive, uncertain considering the cost and length of litigation. According to Lord Wolf, the civil justice system was supposed to be understandable to all the parties that used it1. Moreover, the system was supposed to observe fairness while treating all the litigants. It was also supposed to offer all procedures to the litigants at a reasonable cost. After Lord Woolf published Access to Justice, Civil Procedure Act of 1997 was enacted. Civil Justice Council, established by the Civil Procedure Act, was given the responsibility of reviewing the civil justice system in Wales and England. Lord Woolf also pioneered the formation of pre-action protocols. These protocols were to encourage good communication between the parties in a suit to enhance early settlement. The protocols also allowed for the setting up of the pre-court procedures. The essay focuses on how the overriding objective that Lord Woolf defined both identified the problems in the old rules and provided a solution for the problems.
According to Lord Woolf, overriding objective is intended to serve as a guide for litigants and courts as they engage in their normal activities2.
1 Malleson, K 2007, The legal system, Oxford University Press, Oxford
2 Jackson, R M 2010, Review of civil litigation costs: final report, The Stationery Office, London
They help courts to deal with the cases before them in a just manner. If all courts in England and Wales observe the overriding principles, they will be able to provide an equal footing for all the parties. In addition, the legal expenses would be reduced significantly due to the principles that it outlined. Overriding objective also suggests that all cases should be dealt in ways that are proportionate to the involved amount of money. In addition, all cases should be dealt in ways proportionate to the financial position that each party has. The complexity of the case should also be put into consideration. A particular case will also be solved justly when the resources of a court are allotted appropriately3. Lord Woolf also stated the circumstances that may cause a case to adopt an overriding objective. One of the circumstances is when the court exercises any power given by the rule.
The overriding objective wanted to reduce the high costs that were in the old judicial system in both England and Wales. In the old rules before the overriding objective was implemented, the preparation for a case that was to go for trial took place at the late stage. It made the whole process of litigation to be expensive especially on the cases that were settled before they were brought to trial. A defendant might have hired an expensive lawyer to defend him or her only for the case to be settled before trial. Introduction of the overriding objectives reduced the cost of litigation in several ways. Pre-action protocols ensured that the parties in a legal claim cooperate effectively before a case is put on trial4. Through their cooperation, the parties may agree whether to drop the case or go on trial.
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3 Louglin, P & Geris, S 2012, Civil procedure 2/e, Routledge, London
4 Jacob, J M 2007, Civil justice in the age of human rights, Ashgate Publishing, Farnham
If they decide to drop the case, they will save the legal expenses that they would have incurred if they opted to go for trial. Moreover, the pre-action protocols encourage all the parties to exchange all the information that they may have early before the case proceeds to trial. This helps in reducing the chance of a particular case going to trial since the parties might find that it is not necessary for the case to go to trial. Pre-action protocols also encourage the use of case management if it is possible to avoid litigation proceedings.
Under the overriding objective, it is the duty of all courts to actively manage cases in order to reduce the litigation costs5. Active case management involves deciding the order in which issues which are to be resolved in a particular case should follow. It will help in reducing delay of all proceedings. Due to this, the litigation costs will be reduced. In addition, the court is also supposed to consider whether the benefits that would result due to the adoption of a particular step are more than the costs that are involved in a particular step. It helps in reducing the costs of legal proceedings since courts will not be undertaking expensive steps. Active case management also encourages the courts to consider dealing with a particular case without the need of the parties being physically present to witness the proceedings. It helps to save the travelling costs that these parties would have incurred.
The splitting of cases into small claims, fast track and multi-track cases also help to reduce the litigation costs. Before the overriding objectives were introduced, it was expensive to try cases that involved small claims, because small claim cases required substantial pre-hearing preparation procedures and formalities just like the other cases6.
5 Malleson, K 2007, The legal system, Oxford University Press, Oxford
6 Jacob, J M 2007, Civil justice in the age of human rights, Ashgate Publishing, Farnham
However, the introduction of the overriding objectives helped to reduce the legal costs since small claim cases do not require substantial trial. In addition, district judges control such cases and they do this on informal bases. In fast track cases, oral evidence from the experts is limited. It helps in ensuring that both parties save the costs that would have been incurred to hire an expert. Woolf also stated the importance of eliminating the overreliance on evidence from the experts in an attempt of reducing legal costs. According to Wolf, courts will save many costs if both parties are not allowed to hire their own experts7. He suggested that the courts should consider hiring one neutral expert. It is cheaper to have one expert who owes his/her allegiance to the courts rather than having many experts who inflate the legal costs.
Overriding objective also wanted to reduce the delays that were common in legal proceedings under the old rules. In the old judicial system, the parties were not given a fixed date when their proceedings would take place8. In some instances, the proceedings took a very long time before they actually began. It caused delays since the parties may not have been aware of the day that their proceedings would start. However, the implementation of the overriding objectives helped in ensuring that the delays in all proceedings would reduce. According to the overriding objectives, the parties in any legal proceeding are supposed to be given a fixed date for their trial. This fixed date should be issued to the clients in the fast track of the case. It helped in minimizing the delays that would have occurred in a particular case since the parties are aware of when their case will take place.
7 Louglin, P & Geris, S 2012, Civil procedure 2/e, Routledge, London
8 Andrews, N 2008, The modern civil process: judicial and alternative forms of dispute resolution in England, Mohr Siebeck, Verlag
Due to this, they are able to plan their time so that they are available on the actual day of a case. Moreover, the court is able to schedule its time appropriately considering this fixed date leading to a reduction in the delays that would have occurred during the court proceedings.
In the old system, courts adopted a similar approach while managing both fast track and multi-track cases. This caused delays especially on the fast track cases since they had to wait for the multi-track cases to be complete before they were actually solved. After the judiciary system in Wales and England adopted the overriding objectives, the fast track cases and the multi-track cases used different approaches during the process of litigation. The overriding objectives split cases into three tracks. They include small claims, fast track and multi track. Small claims track deals with cases involving a value that is less than 5000 Euros unless this amount is claimed for cases involving loss of amenity, pain or suffering. In contrast, fast track cases deal with cases whose claim is more that 5000 Euros but less than 25000 Euros9. Multi-track cases deal with claims that are more that 25000 Euros. Lighter case management strategies are used in the fast track cases. On the other hand, heavier case management strategies are used for multi-track cases. The jury without the need of lengthy pre-hearing preparation procedures should decide small claim cases. In contrast, fast track claims should have a set timetable that is less than 30 weeks to trial. It should also have limited pre-trial procedure. Delays in cases are reduced because of this.
Active case management that was introduced by the overriding objectives also helped in reducing delay in all court proceedings. Active case management encourages all the parties to consider using alternative dispute resolution processes instead of relying on court proceedings10.
9 Jacob, J M 2007, Civil justice in the age of human rights, Ashgate Publishing, Farnham
10 Louglin, P & Geris, S 2012, Civil Procedure 2/e. Routledge, London
This is for the reason that it is faster to solve cases using alternative dispute resolution processes instead of relying on the traditional court proceedings. Active case managements also encourage court systems in both England and Wales to consider following fixed timetables when a particular case is in progress. This will help in ascertaining that the court proceedings of a particular case are completed on time. Delays will be minimized because of this. Another strategy adopted by active case management is dealing with many aspects of a particular case on one occasion if it is possible. Court proceedings will be completed before time if many aspects of a particular case are dealt with one occasion. In active case management, the court is supposed to decide all the issues that need full investigation before the start of the trial. From this, the court is able to have a summary of all the investigations required in a particular case. This approach significantly reduces the period of court proceedings.
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The overriding objectives also identified the problem of parties going into lengthy trials instead of settling their case early. Considering the old system, parties ended up having a trial for a particular case since they did not have an early exchange of information regarding the case facing them. In addition, they did not cooperate with each other and this caused the parties to incur many penalties. In some instances, the case would have involved small claims but the parties ended up going to trial. Woolf argues that both parties will save time and money if they considered settling earlier. Part 36 was formed due to the insights received from the overriding objectives. Part 36 allows each of the parties in a particular case the right of making an offer before actual proceedings start11. Moreover, either of the parties in a particular case can make an offer in the appeal proceedings.
11 Andrews, N 2008, The Modern Civil Process: Judicial and Alternative Forms of Dispute Resolution in England. Mohr Siebeck, Verlag
Part 36 argues that once a claimant accepts the offer that is made by the defendant, it is the duty of the defendant to pay the amount offered in 14 days time.
Most courts in England and Wales consider the pre-action offer to settle a particular case. According to Lord Woolf, an offer should be made in writing with intent of having the consequences of part 36 for it to qualify as an offer for settlement. If a particular defendant wants to make a particular offer, he/she should consider making the offer after specifying a period that should not be less than 21 days12. A case ends upon acceptance of a particular offer once the defendant pays the sum of money into the account of the court offer for settlement. If the claimant happens to refuse a particular offer that may have been raised by the defendant, the defendant can raise the initial sum offered. The case goes to trial if the claimant refuses the offer raised by the defendant. During trial, the claimant should recover a higher amount of money than the amount initially offered by the defendant. In case he/she fails to recover a higher amount, the court orders the claimant to compensate all the expenses incurred during the trial. This encourages the parties in a particular case to settle their case early before going to trial.
However, some critics argue that the overriding objectives have failed to identify a problem in the old rules and provide for its solution. According to Jackson (2010), the overriding objectives have failed to encourage parties in a particular case to settle early instead of going to trial.
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12 Louglin, P & Geris, S 2012, Civil procedure 2/e, Routledge, London
This is due to the fact that the parties in a case are highly pressurized to enter into a settlement once a case begins. Moreover, some critics argue that the overriding objectives have caused inconsistent judicial decisions. This has caused parties to be unsure of the amount of money they would win after a certain case is decided. Overriding objectives have allowed judges to exercise judicial discretion. It allows the procedural judges to be immune from appeals and reviews from other judicial bodies. Overriding objectives are also aimed at reducing the overall costs that are incurred during the process of litigation. However, some studies have revealed that these costs may end up going up since they require front loading13. Front loading also occurs due to the case management that was introduced by Lord Woolf. Front loading makes the lawyers work for more hours.
Overall, the overriding objective defined by Lord Woolf identified a problem in the old rules as well as provided the problem solution. Overriding objective helps courts to deal with cases in a just and fair manner. It was aimed at reducing the high costs incurred in the judicial systems in both Wales and England. Old judicial systems incurred high costs since preparation for a case took place at the late stages. With the introduction of overriding objectives, pre-action protocols were enforced. Pre-action protocols ensure that parties cooperate before their case is brought to trial. If the parties decide to drop a case before it goes to trial because of the pre-action protocols, legal costs will be saved. Delays were also common in the old rules of the judicial system in England and Wales. Such delays were caused by the fact that the parties in a particular case were not given the exact time that their case would take place.
13 Jackson, R M 2010, Review of civil litigation costs: final report, The Stationery Office, London
The overriding objectives state that all parties in a case should be given the exact date that their trial would occur. The overriding objectives also stipulated that all claims in a case should be split into three classes reducing the delay that was common in small claim cases.