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Civil Justice? More Civil Justice? The impact of the Woolf reforms on pre-action behaviour Research Study 43 Tamara Goriely, Institute of Advanced Legal Studies Richard Moorhead, Cardiff Law School Pamela Abrams, University of Westminster Commissioned by The Law Society and Civil Justice Council 2002 More Civil Justice? The impact of the Woolf reforms on pre-action behaviour Research Study 43 Tamara Goriely, Institute of Advanced Legal Studies Richard Moorhead, Cardiff Law School Pamela Abrams, University of Westminster Commissioned by The Law Society and Civil Justice Council 2002 i Research Study 43 More Civil Justice? The impact of the Woolf reforms on pre-action behaviour Acknowledgements The authors would like to acknowledge the tremendous help of our colleague Susan Guilfoyle with this research. We are very grateful to her for her hard work and support and for her boundless energy and enthusiasm for the project. We wish her well in her new career as a solicitor. We would also like to extend our gratitude to Morag Russell for her help and energy in collecting information from files. Thanks are due to the many people who provided us with advice, assistance and information, including: Suzanne Burn, Clinical Disputes Forum; Margaret Dangoor, ALARM; Alistair Kinley, Association of British Insurers; Neil Mackay, Legal Services Commission; Annette Morris, APIL; Claire Morgan, Law Society; David Ormondy, University of Warwick; Andrew Parker, FOIL; Pascoe Pleasence, Legal Services Research Centre; Arnold Simanowitz, AVMA; Steve Walker, NHSLA; and Tim Willcock, Lloyd’s Underwriters’ Non-Marine Association The Steering Group provided much needed advice and support through the various stages of the research. Finally, we would also like to express our gratitude to the practitioners, insurers and claims managers who took part in the study and who gave up their valuable time and office space to assist us with interviews and file reviews. All rights reserved. No part of this publication may be reproduced in any material form, whether by photocopying, scanning, downloading onto computer or otherwise without the written permission of the Law Society and the Civil Justice Council except in accordance with the provisions of the Copyright, Designs and Patents Act 1988. Applications should be addressed in the first instance, in writing, to the Publications Department of the Law Society. Any unauthorised or restricted act in relation to this publication may result in civil proceedings and/or criminal prosecution. © The Law Society and Civil Justice Council 2002 ISBN 1 85328 836 5 ii Contents Foreword . .ix Summary . .xi Section 1. Background . .1 Chapter 1.1 Background . .3 Aims and methods . .3 Pre-action protocols . .4 Other changes in the litigation market . .6 Previous research evaluating the Woolf reforms . .8 Structure of the report . .10 Section 2. Personal Injury Work . .11 Chapter 2.1 Personal injury work: introduction . .13 Other relevant literature . .14 Methods . .14 Structure . .16 Chapter 2.2 The context for personal injury work . .17 Developments affecting claimants: replacing legal aid with CFAs . .18 The rise of claims intermediaries . .21 Adapting to CFAs . .23 Making success fees recoverable . .29 Developments within the insurance industry . .31 Summary . .37 Chapter 2.3 The Woolf reforms: overall views and their impact on method of work . .39 Overall views . .39 The impact on claimant solicitors’ methods of work . .47 The impact on insurers’ methods of work . .58 The impact on defendant solicitors . .61 Summary . .62 Chapter 2.4 Letters of claim . .65 Respondents’ views . .66 Work and timing . .68 Content . .74 Summary . .82 iii Research Study 43 More Civil Justice? The impact of the Woolf reforms on pre-action behaviour Chapter 2.5 Responding to the claim: acknowledgement, response and disclosure . .85 Acknowledgement . .85 The response on liability: meeting the time limit . .88 The response on liability: content . .94 Disclosure . .99 A presumption of liability? . .102 Summary . .104 Chapter 2.6 Expert evidence . .107 Medical evidence under the pre-action protocol . .108 The protocol process step by step . .116 Delay and cost . .131 Experts in multi-track cases . .135 Summary . .137 Chapter 2.7 Settlement . .141 Claimant offers under Part 36 . .143 Methods of settling . .149 Time taken . .152 Mediation . .156 More settlements? . .158 If the case fails to settle: supporting subsequent litigation . .160 Summary . .161 Chapter 2.8 Meeting the aims: is the process less adversarial, quicker or cheapter? . .165 Is the culture less adversarial? . .165 Speed . .170 Cost . .172 Summary . .182 Section 3. Clincial Negligence Work . .185 Chapter 3.1 Clinical negligence work: introduction and context . .187 Reforming the NHS . .187 Defending clinical negligence litigation . .189 Developments affecting claimants . .191 Methods . .193 Structure . .193 iv Contents Chapter 3.2 The Woolf reforms: overall views and their impact on method of work . .195 Overall views . .195 Views on cost . .198 The impact on methods of work . .203 Pro-active claims management within trusts . .208 Courts and the Woolf reforms . ..
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