On 15 May 2015, Lord Dyson, Master of the Rolls, gave a speech in Jersey entitled “The English Experience of Access to Justice Reform”. The focus of the speech was the Jackson reforms, set in the context of the Woolf reforms of the late 1990s, Sir Richard Aikens’ 2007 Long-Trials Review, and the more recent Chancery Modernisation Review undertaken by Lord Justice Briggs.
The Master of the Rolls focused on three issues.
The first was the fact that procedural reform in England and Wales, with the exception of the Jackson costs review, has generally been carried out on the basis of anecdotal evidence and “without any real data”. This state of affairs, argued Lord Dyson, had (i) undermined the case for reform by preventing reformers from confidently determining the cause, nature and extent of any problems; and (ii) hindered reformers in their attempts to ascertain whether reforms had actually succeeded or not. Lord Dyson praised the work of the Monitoring Committee established in Hong Kong, and observed that the CJC in England and Wales does not have the “resources or administrative capacity” to undertake a continuing detailed review of all aspects of the civil justice system. This was attributable to a lack of resources (“Money is very tight at the present time of austerity”) and, more importantly, to the fact that the CJC’s members are all busy volunteers.
The second point of the speech was that effective reforms need to be “consistently applied, but without undue rigidity”. On the subject of consistency, the Master of the Rolls argued that one reason for the litigation arising out of the Woolf reforms was the failure of the Court of Appeal to provide consistent guidance as to the meaning and application of the relevant legislation and rules. As to flexibility, however, he cited the Court of Appeal’s decision in Denton v White and other appeals to modify and expand upon its earlier decision in Mitchell v News Group Newspapers relating to the application of CPR 3.9. In short, where a procedural rule produces adverse consequences, the Courts should not adopt an “ostrich-like attitude” and instead should take remedial action to modify that rule.
The third and final issue was “the culture of reform”. Despite successive changes to the rules concerning disclosure following the Woolf and Jackson reviews (permitting courts to order less than standard disclosure or dispense with it altogether) it appeared to Lord Dyson that the courts have not been making the wide range of orders available to them, and that “litigant behaviour” has not significantly changed. He also regretted that there has been almost no take-up of the post-Jackson model of “hot-tubbing”, a mode of simultaneously hearing the evidence of opposing expert witnesses, in a sort of colloquium, followed by brief summaries and cross-examination.
In my opinion, this is not a controversial speech. Few will object to more evidence-based policymaking, or to judicial rule-making which balances consistency and flexibility. There is nothing surprising in his implicit criticism of the failure of the Woolf reforms to control the costs and length of civil litigation. Listeners intrigued by the notion of “hot-tubbing”, perhaps imagining witnesses perspiring in steamy cauldrons of bubbling water in the environs of the Queen’s Bench Division, will have been disappointed to learn that “They do not literally sit in a hot tub”.
Lord Dyson’s suggestion that “Most lawyers tend to be rather resistant to change. They prefer the comfort zone of the familiar” is hard to dispute as a general principle, but may be unfair insofar as it implies that the lack of a culture of reform among litigators causes excess cost and/or delay. The sheer length and weight of the White Book rather suggests that the process of civil litigation is inherently more complex than it needs to be, a point which Lord Dyson has readily acknowledged in the past, and (it might be argued) lawyers must use the system as they find it, constrained only by their professional duties to their clients and to the court.
More broadly, it is notable that the Master of the Rolls stayed away from the political implications of his chosen topic. Campaigners for access to justice cite cuts to legal aid, funding shortages in pro bono advice centres, and hikes in court and tribunal fees (among other changes) as the main contemporary threats to access to justice. It is understandable why a senior member of the judiciary might choose to avoid matters of such controversy, confining his remarks in this instance to judicial reform, but the inevitable result is an air of mild unreality. This is not to criticise the Master of the Rolls, however. His address to the Law Society on 22 April 2015 entitled “Delay Too Often Defeats Justice” had a much more radical flavour, and he has been unafraid in the past to discuss the risk of miscarriages of justice which is likely to accompany the rise of litigants in person.
Beneath the mild exterior of this speech, however, lurks a sharp message. The work of procedural reform is far from finished, and the culture must somehow change. This work will ultimately be done by lawyers, either in practice or on the bench.