Inconsistent application of the Woolf reforms means many of their benefits are wasted, says Tim Wallis....

Many of the Woolf reforms have been useful and highly successful. The problem, however, is that judges are not applying the new civil procedure and case management rules consistently.

Introduced to streamline and quicken civil justice procedures, the reforms are not bringing the benefits they should.

In one case, for example, solicitors for a claimant obtained an expert's report one month before trial. The defendant objected to this evidence and the claimant made an application which the court heard immediately before the trial.

The defendant was confident that the expert evidence would not be allowed, given various warnings from local judges. Not only was the evidence allowed, however, but the judge added that the defendants had been put on notice and had had an opportunity to apply to postpone the trial and instruct their own expert – an unpredicted result, which had a bearing on the outcome.

In a survey recently carried out by the Law Society, 62% of respondent solicitors said judges were not applying the rules consistently. This finding is backed anecdotally by insurers and their solicitors. Such inconsistency can turn out to be very expensive: specialist solicitors cannot predict judicial approaches, particularly on routine applications prior to trial, and insurers will have to bear the cost of unnecessary applications and appeals.

There is, however, some action insurers can take to improve the situation. Firstly, appeal inconsistent and idiosyncratic decisions. A flurry of appeals will have an effect. Appeals from the judges who control case management, usually district judges, will come to the attention of one of the designated civil judges. The chief role of these judges is to ensure an effective and consistent approach to case management.

The fundamental point is this: if there are no appeals, the designated civil judges will not have the opportunity to do their job and attack inconsistencies. Beware of refusing to appeal because the value of the particular case does not

warrant it, because the persistent inconsistent application of the rules is potentially far more expensive than a few appeals. Appeals this year can save costs for the next five years.

Secondly, where an appeal cannot be justified or is undesirable for tactical reasons, instruct the solicitor conducting the matter to write to the judge concerned, with copies to the designated civil judge and the Civil Justice Council. The council has the task of advising the Lord Chancellor to see that the system is fair, accessible and efficient and, above all, consistent.

Acting together, insurers and their solicitors can improve this situation, which will help solicitors to predict what the courts will do and ultimately save costs. Inaction will only compound the problem.

  • Tim Wallis is vice president of the Forum of Insurance Lawyers.