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Lord Woolf, Master of the Rolls

An extract from his Samuel Gee Lecture to the Royal College of Physicians

Medics, Lawyers and the Courts

Tuesday 13 May 1997

Medical negligence was given a high profile during my inquiry and has been the subject of a number of the recommendations which I have made. This is because medical negligence was one of the areas of litigation - I emphasise one of the areas of litigation - where it was obvious to anyone involved that the civil justice system was not working satisfactorily and radical change was desperately needed. I am confident that no one who has personal experience of this subject would dispute this diagnosis.

The recommendations I have made for the improvement of the handling of medical negligence cases are but an example of my recommendations for the improvement of litigation generally. If the general recommendations are not sound then I have to acknowledge my recommendations as to the handing of medical negligence cases must be flawed.

It is because of this I now refer to a campaign of opposition to my recommendations upon which Professor Michael Zander has felt it right to embark. I do so, because if he is right in the criticisms which he makes, then the support which I have received from this College and the other Colleges has been misplaced. In addition, those who have been and are still working on carrying forward my reforms are engaged on a futile task. Among those to whom I am here referring are the medical and health practitioners, lawyers and insurers who have been carrying forward the reforms as part of the Clinical Disputes Forum. They include, a partner in a firm of well known solicitors who conduct litigation on behalf of plaintiffs in medical negligence cases, who felt the inquiry into access to justice was such an important opportunity that she gave up her practice for nine months to work entirely voluntarily to assist in the preparation of my report.

I had been aware that Professor Zander has been concerned about my recommendation for some time. He is a friend and he has been punctilious in keeping me informed of the criticisms that he is making. If criticisms are constructive I welcome them. It is for that reason that I invited Professor Zander to address a meeting which was held in connection with my inquiry and I have also accepted his invitations to appear on the same platform to discuss my report. For the same reason I have deliberately restrained my response to his criticisms though I have observed they are becoming more strident as time passes. However, last week he gave a lecture for which he invited wide media attention which I am afraid I regard as being misleading and inaccurate I therefore propose to devote part of the remainder of this evening to responding, insofar as time permits, to the criticisms which he makes.

As I understand his thesis, it is that there is nothing very much wrong with the way the civil justice system is working but insofar as there is anything wrong, it is unlikely that anything can be done about it, because lawyers will not change their ways and, in any event, the recommendations which I have made will make the situation worse rather than better.

In making this root and branch attack on the reforms, Professor Zander recognises that he is, as he has said himself, a Cassandra figure. He said in his lecture last week "the Woolf project appears to have almost universal support including, so far as one can tell, that of the senior judiciary, the Bar and The Law Society as well as both the lay and the legal press". He adds that "one might have expected that of all people, practising lawyers would take exception to Lord Woolf's caustic view of the way that they operate. But neither the Bar or The Law Society has raised a peep of protest about this calumny. Indeed Lord Woolf's view was essentially not different from that of the independent working party set up in 1992 jointly by the General Council of the Bar and The Law Society". He is here referring to the report brought out under the chairmanship of Miss Hillary Heilbron QC and Mr Henry Hodge which reflected the views of 44 highly experienced practitioners. He suggests there has been "remarkably little interest in awkward facts and analysis that suggest that this emperor is wearing no clothes".

In general I must confess the tenor of his lecture reminded me very much of the remark attributed to a nineteenth century judge who was reported to have said "reform, don't talk to me about reform, things are bad enough already". Professor Zander concluded his lecture by saying and I quote :

1. The arguments I have been pressing are very strong ones and that they deserve an answer. But they have not been answered - perhaps because they are unanswerable.
2. That the new Lord Chancellor should say, "I want to be told by someone in detail and addressing the facts and figures why Zander is wrong". And Zander should be given an opportunity to reply to such an assessment of his argument. And let there be a reply to Zander's reply and let this process go on until both sides have said what they have to say. Such exchanges or advice to the Lord Chancellor should be published and then let the Lord Chancellor decide which is the better argument.
3. A prudent approach might, for instance, lead us to stand by implementing the proposal made in 1979 by the Cantley Committee that attention should be directed first and foremost at the small minority of cases that plainly appear to be lagging. If a case has not been set down for trial within X months of issue of the proceeding a summons should be issued requesting an explanation. The court could then give whatever directions seemed appropriate in the light of what it was told about the reasons for delay. That would be a reform targeted at the right cases, as opposed to Lord Woolf's scatter-gun approach which would apply the reforms mainly to cases that do not need them."

If you heard his lecture you would no doubt be impressed by his eloquence but you should not have been impressed by the content. It was not based on any relevant practical experience. He is a distinguished academic and contributions from academics can be important. However he has not suggested that the views that he holds are based on any research which he has conducted himself into the workings of the civil courts in recent time.

By contrast, although I of course accept this does not mean that my recommendations have any validity, they were at after an intense two years consultation process conducted with the assistance of assessors with a wide ranging experience of the subject with which my report deals. I was also helped by expert working parties of highly experienced practitioners and academic consultants of distinction whose findings supported my conclusions.

Those findings were that the civil justice system has become excessively adversarial, slow complex and expensive. That this is especially true of litigation over alleged medical negligence in the delivery of health care whether by doctors, nurses or other health carers. For example there are five respects in which medical negligence actions conspicuously failed to meet the needs of litigants :

1. The relationship between the costs of the litigation and the amount involved was particularly disproportionate. The costs were peculiarly excessive, especially in low value cases.
2. Delay; the period which regularly elapsed before claims are resolved is more often unacceptable in the case of medical negligence claims than other classes of proceedings
3. Unmeritorious cases are pursued and clear-cut claims defended for longer than happened in other areas of litigation.
4. The success rate is also lower than in other personal injury litigation.
5. Finally the lack of co-operation between the parties to the litigation and the mutual suspicion as to the motives of the opposing party is frequently more intense than in other classes of litigation.

I emphasise that the system is not meeting the needs of patients or professional health carers. They are both being let down by the civil justice system at present. The pain is not only caused to the potential plaintiffs. It is caused also to those who have been responsible for delivering the health care of which complaint is made. All too often they find themselves in a nightmare situation. Their ambition throughout has been to help the patient but instead they find that they are the subject of hurtful allegations of negligent mistreatment. The allegations often only surface after the carer has ceased to have any real recollection of what happened. Frequently the carer feels intense frustration. They believe that if only they could have an opportunity of discussing the issues with the patient they could satisfactorily explain why things turned out as they did. However outdated conventions as to behaviour makes this impossible. The concern is, that if there is an apology, or if even an explanation is given this could be used in evidence against him or prejudice his position with medical defence bodies. The result is patients feel let down. Treatment has gone wrong, sometimes because of unrealistic expectations as to what could be achieved and carers react defensively in respect of attacks from patients which they regard as unjustified.

I was convinced that a way had to be found for breaking down the barriers which divided the patient from his carers so that wherever possible litigation could be avoided. This could only help everyone involved. It would save on costs. It could result in those patients who deserve to be compensated receiving proportionate compensation voluntarily, and in an atmosphere which did not poison relations between the patients and those who had been treating them. Often, where things have gone wrong the need for treatment is at its greatest and the breakdown results in the professional feeling frustrated in not being able to provide that treatment.

The opposition of Professor Zander to my recommendations is based on his unwillingness to accept that the civil justice system has these serious faults that I and virtually all commentators are agreed the system suffers from, and his unwillingness to accept that, if the faults do exist, my recommendations will improve the situation. Let me therefore deal with these points in turn.

THE FAULTS: At the outset I should make it clear that all the blame for the problems which I believe exist is not to be laid at the door of the legal profession. Too often in individual cases lawyers are at least partly to blame but more important as a cause of the problems is the disproportionate way the present adversarial system operates which encourages excessive delay, expense and unnecessary complexity. It is the system, not the lawyers, that explains, for example, the hostility and bitterness which distorts medical negligence litigation.

DELAY: On the question of delay Professor Zander in his lecture relies on two reports which were into personal injury alone. One published almost 30 years ago (1968 Winn) and the other is brief and published 18 years ago without any attempt at consultation (Cantley 1979). Even 18 years is a long time ago. The Winn report as Professor Zander accepts did consider that delay was a problem and though not coming to identical conclusions substantially shared my views. Cantley was a limited exercise there was no consultation and it took a more sanguine view of the position. Professor Zander suggests I may have not considered the evidence provided by those reports, I know not why he makes this suggestion but it is ill founded. I did however prefer to rely on the up to date statistics set out in my Interim Report and what I and my team found to be the position after what is suggested to have been the most extensive and thorough examination which has ever taken place into the civil justice system. I did not act as Professor Zander suggests on "unsubstantiated opinions" which I agree would be "a recipe for getting things radically wrong".

The statistics included the following figures; High Court cases taking 163 weeks in London and 189 weeks elsewhere to proceed from issue to trial. In the county court dealing with smaller cases the figure was 80 weeks. These figures were I emphasise for the average case. Many would take substantially longer. Research for my inquiry by Professor Genn indicated that in medical negligence cases the average time from issue to conclusion was 6 years 5 months and in ordinary personal injury actions over 4.5 years. To these figures have to be added the substantial periods sometimes years which is allowed to pass prior to the action being commenced.

I said in my report that the figures were unacceptable and as far as I am aware no one has sought to suggest the figures are inaccurate or apart from Professor Zander that my criticism is unwarranted. I was also concerned about the time cases were taking to settle. Here the figures available were for 1993. Of the cases which were set down for trial - that means they had gone through all steps necessary to make them ready for trial, only 13% were determined after trial, 9% settle at the door of the court or during the trial. That is, after all the expense has been incurred. I also referred to the research of Professor Genn which showed that the majority of cases took as long as four to six years to settle - larger cases took longer. Again I regard the figures as unacceptable. In doing so, I have very much in mind the trauma that litigation can cause to those involved and why, especially in medical negligence cases it can leave both sides with a grave sense of the justice system having failed them. In minimising the problem as to delay Professor Zander displays remarkable complacency.

Professor Zander however suggests that I am being "Canute like" and defying reality in suggesting something can and should be done about this instead of recognising that "the enterprise is hopeless." He also categorises the failures of lawyers in this area as "minor failures". In expressing these views, he refers to the unfortunate experience in relation to the automatic strike out provisions. They were introduced into the county court rules in an effort to do something about the situation in 1990. The device was simple and crude. If a plaintiff allowed 15 months to elapse after the time when the parties had set out their case in writing in documents called pleadings before taking the steps necessary to enable the court to fix the date for trial the action would be struck out automatically and they would have to apply for it to be restored. What was not foreseen is that in some 20,000 cases or more the plaintiffs lawyer would delay for over a year and a quarter to take the elementary step of setting down the case which is a condition precedent to the case coming to trial. I at least here am able to agree with Professor Zander that this result has been a "disaster" there have been appeals galore and actions for negligence and numerous applications for the action to be restored. However I certainly dissent from his conclusion as to what should be the response. Professor Zander suggests we should accept and I quote;

The error which was made when the rule was introduced not appreciating that there would be anything like this number of cases which it would affect. The error was understandable because the system could not provide the information which was needed to know otherwise. What then should be done? First, the lesson should be learnt that there will be a substantial number of the cases, in which contrary to Professor Zander's views, if the lawyers for the Plaintiffs are left to their own devices they will delay taking even the most elementary steps in the interests of their clients.

Secondly it must be accepted that in the interests of justice, as no one else can take the responsibility, the court must take the responsibility for seeing this does not happen.

Thirdly, it must be recognised that the solution is not to impose Draconian sanctions except as a last resort but to achieve a situation where sanctions of this sort are not necessary because: (a) the court does not allow the situation to deteriorate to the extent that they become necessary; and (b) the court has the wider range of alternative sanctions I propose. Unfortunately this will only be possible when the technology I have recommended is in place.

The experience with automatic strike outs is therefore not an argument against case management but for case management. Ironically in relation to delay, despite his uncomplimentary remarks about my proposals and my own personal qualities (in addition to being Canute like and indulging in scatter gun tactics, I am building castles on sand and proceeding like the Generals of the first world war, just thoughtlessly blundering ahead) Professor Zander does at least make two and only two, positive proposals which I hope he will not be disappointed to learn are very much the same as my own. They are that dates for trial should be fixed at an early stage in a case's life and if a case is manifestly lagging behind schedule it should be called in for directions. Where we differ, is I do not restrict myself to these modest steps because delay is by no means the only subject which has to be tackled. There is in particular the need to reduce costs, to simplify the system, to remove disproportionate behaviour of differing kinds which identify and to divert cases from the courts when there is a preferable alternative method for resolving the dispute.

COSTS: T he research conducted on behalf of the inquiry established clearly that costs are disproportionate to the issues involved in litigation. They are substantially higher than those in some other jurisdictions, particularly Germany, with which comparisons were drawn as a result of the research conducted on behalf of the Inquiry by Adrian Zuckerman of Oxford. There is incontrovertible evidence that cases frequently involve costs of one party alone in excess of the amount in dispute. Unless they are assisted large sections of the community can not afford to go to court. This is again especially true of medical negligence litigation. Over 90% of the cases which reached the stage of litigation are legally aided. 92% of the successful litigants are legally aided. Yet the legally aided section of the community is no more vulnerable than other sections of the community to medical negligence. These figures must suggest if those other sections of the community were entitled to legal aid more actions would be brought which would succeed.

Professor Zander ignores this situation as he does the other situation namely housing where a similar waste of public expenditure can be demonstrated to be occurring. I do not believe he would do so if he had the opportunity that I had of learning at first hand from litigants, both patients and doctors and health carers, who are embroiled in this class of litigation what the experience is like. It is horrendous. Has it occurred to Professor Zander that the explanation for the failure of the lawyers and judges not to object to my "calumny" which he finds so surprising, is that as practitioners they are all too well aware of what is happening on the ground and they agree with the diagnosis of the inquiry? Why does he make no mention of the consumer bodies who were adamant that radical action was necessary and who support my programme of reform?. Are they unaware of the views of their members?

There are plenty other diseases to which the system is prone, including the lack of certainty as to what will be the consequences of becoming involved in litigation, the fact that it fails to allow for the inequalities in resources of the parties and it is excessively adversarial. There are problems as to discovery and experts. However as the remainder of my diagnosis is not under specific challenge but ignored by Professor Zander I will turn now to the reforms or, should I say the medicine which I have recommended.

THE MEDICINE: Professor Zander's criticism to date as far as I am aware is only as to two important elements of the package of reforms that have been recommended. They are the related subjects of the fast track and case management. However, the merits of those two recommendations can only be appreciated in the context of the recommendations as a whole. Among the most important of these recommendations are the reorganisation of the civil courts, the creation of a single Rule Committee for the civil justice system as a whole and the creation of the Civil Justice Council and the greater involvement of litigants in their own litigation. These recommendations are intended to provide the structure in which a radically reformed system can operate and to then enable that system to be kept under review.

Among the more specific recommendations are those as to protocols and expert evidence in the case of both of which my recommendations are designed to establish an agreed best practice.

The protocols are a wholly novel concept designed :

1. to focus the attention of litigants on the desirability of resolving disputes without litigation;
2. to enable them to obtain the information they need to settle the action or to make an offer to settle; and
3. if settlement is not possible to enable the ground to be prepared for the action to proceed expeditiously.

The protocols will receive the support of the court and will be published in practice guides issued by the court. It is intended that they should be taken into account by court if litigation results on the question of costs. They will be in effect a guide as to how to resolve disputes both prior to litigation and during litigation. It is essential if the protocols are to have credibility that they should be drawn up by a working group with unquestionable extensive practical experience of the problem areas of litigation to which they relate.

• In the case of medical negligence the working party is known as the Clinical Disputes Forum. The Forum has members who are distinguished doctors, health carers, lawyers who act for plaintiffs and the defendants and insurers. Under this umbrella, representatives of the different interests, for the first time working together, have been struggling to find the right way forward and are reasonably close to agreeing a protocol which accords with my recommendations.

That brings me to a further problem area and that is of expert evidence. I have been surprised but pleased by the interest the medical profession is taking in my recommendations as to expert evidence. I sense that the medical profession are not at all comfortable about the present situation. Here again there is an unhealthy polarisation. There is a tendency for medical experts to be categorised as plaintiffs or defendants experts. They are looked upon by the side which has instructed them - and this can be their own perception of their position - as hired guns, brought in to fight to the best of their ability on behalf of the side which is employing them. It is specially unfortunate that this should be the situation in medical cases because the court is dependent on medical advice for resolving the three issues liability, quantum and causation which are often particularly difficult in this area of litigation.

While there has been some improvement, it can still be very difficult to find an expert if you are a plaintiff. This is because of the understandable reluctance, on the part of healthcare professions, to criticise colleagues. The result is those experts who are prepared to give reports on behalf of plaintiffs, are diverted from their practice and become, over dependant upon medico-legal reporting for their livelihood which can further undermine their independence.

My report seeks to improve the situation by making it clear that the experts first responsibility is to the court and not to the side that instructs them. For this reason reports are to be made to the court. However I would go further.

There are some issues near the "cutting edge" of medical science where there are two schools of thought. However there are many areas where what is proper medical practice is not a matter of controversy, the issue is whether that practice has been adhered to. There are many issues as to quantum where one opinion is very likely to be very similar to another opinion. I believe there is scope for the joint instructing of a single expert, at least in the first place, in those cases where there is no controversial medical issue involved. A breakthrough is needed because at present both sides contend that they cannot trust the expert instructed by the other side and so instruct their own experts. This tends to make agreement of medical issues more difficult instead of less difficult. We need a more co-operative approach but that will only arise if the independence of the expert is clear. This really should not be a problem where those who are consulted are asked to advise because of their professional expertise and standing. At the present time one has the ludicrous position that because experts and those who instruct them are not trusted, the parties will not even agree to sequential as opposed to simultaneous disclosure of experts reports.

There should also be more frequent meetings between experts to resolve issues. Lack of communication between experts often explains their failure to reach agreement

Changes of this nature represent a change of culture. They are suitable subjects for protocols. They will bring about significant changes to both cost and speed with which disputes can be disposed of. More importantly they will help eradicate the suspicion which has been so destructive to the relationship between patient and carer.

CASE MANAGEMENT: I now turn to the two areas of the recommendations which are the subject for Professor Zander's attack. Case management is central to my recommendations because it is the means by which cases are handled in the court system. There is nothing new about it. It an essential part of any system and is used with differing degrees in every developed system of civil justice. My recommendations are criticised because they call for more management by the court. This is exactly what is happening in Canada, New Zealand, Australia and has been happening in the USA for a great many years. It is also part of civil systems It is practical today to exert greater case management than in the past because of the advances in technology which make it possible for courts to monitor the progress of cases. It was the absence of the ability to monitor cases which meant that it was not possible to implement the Cantley recommendation which Professor Zander finds so attractive. It is this change which explains in part why in my report I attach such importance to technology. The other reason is the savings to the system which it will achieve. As in medicine technology opens new horizons.

While I favour the greater case management which is now possible I recognise that case management does involve the parties in more expense and so it can only be justified if the savings and other benefits which can be achieved justify that expense. Therefore as Professor Zander does not acknowledge, " hands on" case management is to be limited to those cases where it is likely to produce real dividends. Just because a medicine can be effective you do not use it unless it is justified.

In medical negligence cases for example it has a clear role to play which will undoubtedly be beneficial. It will weed out the hopeless cases which create unnecessary dislocation and expense to hospitals, it will ensure that discovery is controlled, it will confine the parties to the real issues and control expense by limiting hearings. It will be used to encourage settlement and restrict the issues. Administrative arrangements have already been made to deal with the fear of Professor Zander that it will result in inconsistency of treatment by having the same procedural judge or Master to deal with all the cases in London and similar arrangements will need to be made outside London.

I believe that it would be difficult to find a practitioner who knows what he is talking about who would say that litigation of this sort would not benefit from selective case management. It is not the schoolmaster type of process which Professor Zander seems to have in mind. It is the court providing a forum in which the lawyers and the judge can work out the most satisfactory way a case can be dealt with and the judge then supervising the progress to trial in accordance with that programme. What the judge will prevent is parties not fulfilling their responsibilities, acting unfairly to a weaker party or acting unreasonably. Other types of litigation where case management is unnecessary will move directly to a hearing.

In support of his criticisms Professor Zander cites Sir Jack Jacob who he rightly describes as "truly a master of civil procedure and wiser in these matters than any of us" but he makes no reference to the fact that in his Hamlyn Lecture of 1986 under the heading Prospects for the Future Sir Jack set out in outline just the sort of changes that I am advocating as being necessary in the future.

The other source from which Professor Zander seeks assistance is the Rand Report on judicial case management in the USA. Here the selective way Professor Zander cites from the report indicates that he has wholly failed to grasp the true nature of my recommendations or he has not fully absorbed the contents of the Rand report.

I would not wish litigation in the field of medical negligence or in any other field to be handled this country as it is in the States. However even if the situations are comparable which they are not I would not have anything to fear from Rand. First Rand indicates that early case management reduces time to disposition. It also found that my approach as to early settling of a trial date and reduced discovery reduced both delay and costs. While early case management had an upward effect on costs, the overall effect was to reduce delay without having any significant effect on costs or the perception of fairness.

Why I am however particularly critical of the use by Professor Zander of the Rand report is that its general conclusion is that it found little change in what was happening before 1990 when it started its survey and afterwards. The reason being that the act of Congress whose effect they were monitoring was loosely worded so judges could interpret what they were doing prior to the act as compliance with the act. Furthermore, as Professor Resnick who really does know what she is talking about has pointed out, the increase in costs detected by Rand in relation to early case management could be the consequence of Congress, making national rules apply to small cases when the rules are only appropriate for the large cases for which they were originally designed.

This unselective approach which Rand examined is wholly contrary to the thrust of my report. Remarks by Professor Zander suggest he has failed to grasp the elementary point that I am not recommending that case management shall apply to all cases where a defence is entered. In particular hands on case management, in the sense that term is used by Rand, is intended to have no application to cases on the fast track. Yet he uses Rand to suggest in his lecture that lawyers would not use the fast track because of the additional expense to which they would be put by case management.

The fast track in its strict form will not be suitable for medical negligence cases. They are too complicated for application to the fast track. The virtues of the fast track would be beneficial for small medical claims such as claims against dentists if a suitably modified fast track could be devised. The virtues are that they provide a restricted procedure and a no frills form of litigation on a fixed timetable at a fixed cost. It provides a litigant with certainty as to what he is letting himself in for. A working group of volunteers are conducting an experiment in Birmingham to test whether a modified fast track could work in small cases. I should therefore deal briefly with the unjustified criticisms heaped on the fast track by Professor Zander.

1. First he seeks to apply the Rand conclusions to the fast track when they have no application.
2. Secondly he seems to think they are to be subject of the Draconian sanctions when the idea is to call cases in for directions if the timetable is not kept in a way which will prejudice the fixed date of trial. It is however intended that if a lawyer wants more time he should apply in advance and not when time has already expired.
3. Thirdly he says lawyers are not capable of working to a time-table. This is not correct. Experience now exists that if time-tables are set which are reasonable (and the Fast Track time-table is being drawn up in conjunction with those with great experience) then lawyers have no difficulty in complying with time-tables and they welcome the certainty they produce.
4. Then he says it will produce a sense of unfairness and prevent proper exploration of the issues. However this is to ignore the alternative which can be no access to justice at all. It can also result in totally disproportionate litigation.
5. Finally he says that I am setting the fixed cost too high, citing against me Adrian Zuckerman and then suggests the cost will be unfairly low. I do not see how he can make either of these criticisms since the cost is still the subject of consultation by the profession.

While I reject Professors Zander's criticisms I do not suggest the process of implementing my report is going to be easy. There are bound to be teething troubles. Modifications of detail will need to be made. My proposals are not written in stone. However they do offer a practical programme to achieve a dramatic improvement in the way we handle civil litigation and in access to justice. That that improvement should happen is important to the public as a whole. It is particularly important to medics and all whose work is the provision of health care and those who receive that care. A great many right thinking lawyers and medics have worked and are working hard in their valuable spare time to ensure the improvements come about.

It is right that what is being sought to be achieved should be the subject to fair and balanced criticism. It is no part of my argument that the new Lord Chancellor should not conduct the review as he indicated prior to the election would happen. It would however be unfortunate indeed if the Lord Chancellor were to call a halt to all the work that is in progress at the present time as Professor Zander suggests. To pay serious attention to what Professor Zander has said would be to give him credit he does not deserve. I regret having to say this of a friend but the fact is that his lecture was not a balanced consideration of this serious subject and ill considered. Ill considered because he is oblivious of what is in fact happening on the ground. Unintentionally he could damage a process of change which is already taking place and which while it will not be smooth, offers real hope for the future as judges, practitioners and insurance bodies up and down the land recognise.

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