HAMLYN - College of Social Sciences and International Studies ...

Civil Justice
across-the-board raising of costs through the direct and indirect
effects of case management.
The greater hands-on case management for Multi-track cases
(those involving amounts of over £15,000), with two pre-trial
hearings, will generate even greater additional costs. Lord
Woolf's hope is that such additional expenditure pre-trial will
save significant costs at the trial, but there is no empirical
evidence to support that, whilst there are studies that show that
pre-trial hearings do not shorten trials. 52
Whilst judicial case management may result in better preparation
of cases for trial, it is a recipe for increased rather than
decreased costs 53 as Lord Woolf finally acknowledged in 1997, a
year after publication of his Final Report. 54 It is interesting to
speculate what impact his recommendations would have had if
this admission had been made much earlier.
The Lord Chancellor's Department's paper on evaluating the
Woolf reforms suggests that the hoped-for advance in regard to
fairness will flow, for instance, from the impact of sanctions for
unreasonable behaviour and from the new rules on claimants'
offers to settle.
I am wholly in favour of the new procedure for claimants'
offers to settle. The defendant, typically an insurance company,
52 See especially the study of matched samples in 3,000 personal injury cases in
New Jersey which found that pre-trial conferences lowered rather than raised
the efficiency of the system by absorbing a great deal of court time without
any compensating savings. M. Rosenberg, The Pre-trial Conference and Effective
Justice, (Columbia University Press, 1964), p. 68. There are two studies of
criminal cases that have come to the same conclusion: M. Levi, The Investigation,
Prosecution and Trial of Serious Fraud, Royal Commission on Criminal
Justice (Research Study No. 14, 1993), p. 105 ("None of the defence lawyers I
interviewed argued the pre-trial reviews had any significant effect on the
development of the case"); M. Zander and P. Henderson, The Crown Court
Study, Royal Commission on Criminal Justice (Research Study No. 19, 1993),
s. 2.8.9. (Crown court judges were asked whether the pre-trial review had
saved much time or money at trial. Two-thirds said no, a quarter said a little
and 8 per cent said a fair amount of time had been saved. Only 1 per cent said
a great deal of time had been saved.)
53 This was one of the most important findings of the major study of the impact
of judicial case management by the Institute of Civil Justice of the Rand
Corporation. For details see M. Zander, "How does judicial case management
work?", New Law Journal (March 7, 1997), p. 353 and April 11, 1997, p. 539.
54 "While I favour the greater case management which is now possible I
recognise that case management does involve the parties in more
expense . . ." (Lord Woolf, "Medics, Lawyers and the Courts", Civil Justice
Quarterly (October 1997), pp. 302, 314.)
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