McKinty and Wright Solicitors - Northern Ireland Based Solicitors, Lawyers Belfast.

The Woolf Reforms transformed the Civil Justice landscape in England and Wales. A review of Northern Ireland’s Civil Justice system proposes much less dramatic changes but to date implementation has been piecemeal.

In Hamlet’s most famous soliloquy (“to be, or not to be….”) reference is made to, inter alia, “the law’s delay”. More recently Lord Justice Woolf criticised the English Civil Justice system as excessively adversarial, expensive, slow and complex in his “Access to Justice” reports of 1995 and 1996. It seems that delay has been a feature of our legal systems for a considerable period of time!

The Woolf reforms went to the very heart of the English Civil Justice system and one of their main changes was a shift in case management from lawyers to the Courts. The reforms did not however encompass the Civil Justice system in Northern Ireland.

Whilst on the surface Northern Ireland’s legal system has many similarities to that of England and Wales, close inspection reveals many significant differences. It was however felt that Northern Ireland’s Civil Justice system faced largely the same problems and so in a speech to the Bar of Northern Ireland in February 1998, the Lord Chancellor, the Right Honourable the Lord Irvine of Lairg, announced the formation of a Civil Justice Reform group. It was tasked with reviewing procedures in Northern Ireland’s Civil Justice system and producing recommendations as to how the system might be made more accessible, efficient and economical.

“…that the pattern and scale of civil litigation in Northern Ireland are significantly different than in England and Wales. As a result Lord Woolf’s analysis of the problems and their causes is not fully applicable to the Civil Justice system of Northern Ireland. In particular, the group considers that an “excessively” adversarial environment has not developed and that the problems with expense and delay, while significant, are not so great as in England and Wales. Nonetheless, many of Lord Woolf’s strictures do apply and there are weaknesses in the system which require serious consideration”.

Woolf introduced “tracks” or “tiers” whereby cases are allocated according to their value and complexity. It was felt that whilst this was suitable for Northern Ireland, it could be done by refining the existing three tier system already in place: Small Claims (lower tier); County Court (middle tier); High Court (upper tier).

§ A system of offer to settle and payment into Court similar to England and Wales (part 36) should be introduced in Northern Ireland for both money and non money cases. It does however seem unlikely that Northern Ireland will copy the English part 36 offer and instead will tailor the concept to the needs and requirements of its own individual system.

§ The imposition of single Court appointed experts was not endorsed. Parties should however be encouraged to appoint joint experts and protocols could include an option to invite liaison over same. In certain cases where an expert is unnecessarily retained by one party, the Court should have power to direct that the costs of that expert be disallowed.

§ Parties to proceedings should not be required to exchange witness names prior to Trial. Parties should however consider voluntary exchange of witness statements in appropriate cases where relevant evidence is unlikely to be in dispute.

§ Experts’ written reports should be accompanied by a signed statement to the effect that the expert has directed his or her mind to the issues in an impartial manner with a view to assisting the Court rather than seeking to advance the case of the instructing party.

§ Properly drafted written reports should be used so far as possible in preference to oral testimony which should only be admitted by leave of the Court or with the consent of all the parties and provision should be made for oral evidence from medical experts to be given by telephone conferencing system.

§ The Court should have authority to order opposing experts to meet in order to identify areas of agreement and disagreement and to produce their joint finding in a single report to the Court.

Some of the “Campbell reforms” have already come into effect. However they have been confined largely to the lower tier (Small Claims Court). The monetary jurisdiction of that Court has already been increased from £1,000 to £2,000 and certain provisions in relation to default Judgments and service outside the jurisdiction have been incepted. It was reaffirmed that pleadings in the lower tier should continue to be kept at a minimal level and normal rules of evidence should not apply. It was further felt that no personal injury or road traffic cases should be heard and that case management was unnecessary.

As far as the middle tier (County Court) is concerned the Civil Justice Reform Group felt that the existing monetary jurisdiction (£15,000) should be maintained. It considered a “fast track” system as introduced by Woolf but this was rejected on the basis that the existing County Court already had a satisfactory system of case management introduced in 1995 based on the filing of a Certificate of Readiness by the Plaintiff’s solicitor. If not done within six months of lodgement of the Notice of Intention to Defend by the other party, the matter is listed for Review before a County Court Judge who can give directions as to onward conduct. It was felt that the existing system of fixed statutory scale costs should be preserved. The monetary jurisdiction of District Judges, who deal with more minor County Court matters has already been increased from £3,000 to £5,000 in accordance with the Reform Group’s recommendation.

It is the upper tier (High Court) where to date there has been no change at all. This is somewhat unusual because it was in fact the upper tier which was felt to be most in need of reform. Some of the main recommendations in relation to same were:

§ The lack of a proper system of case management was identified as a serious weakness in the Queen’s Bench Division. It was recommended that the County Court system of a Certificate of Readiness be adapted and that parties be given a maximum period of nine months from filing of the Defence to prepare their case and set it down for hearing. If not set down, the action should be automatically listed before a senior Queen’s Bench Judge for explanation/directions etc.

§ Use of scale costs in High Court Actions should be increased and rule based costs should be introduced, responsibility for which would be entrusted to a newly constituted Supreme Court Rules Committee.

The review of the Civil Justice system in Northern Ireland has been as wide and far reaching as that conducted by Lord Justice Woolf but the recommendations and observations have not led to the “big bang” revolution in Civil practice and procedure that Woolf introduced. At present, changes to the upper tier are still being considered and developments are awaited. It is however quite apparent that the Northern Ireland Civil Justice system will continue to retain its distinctness as a separate legal jurisdiction whilst retaining only surface similarities with neighbouring legal systems.