Although Settlement, Rather Than Litigation, Poses a Number of Problems for a Civil Justice System These Matters Have Been Largely Resolved by Lord Woolf’s Reforms

Topics: Dispute resolution, Law, Common law Pages: 16 (2940 words) Published: August 23, 2013
Although settlement, rather than litigation, poses a number of problems for a civil justice system these matters have been largely resolved by Lord Woolf’s reforms Assess the validity of the statement

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“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser, in fees, expenses, and waste of time” (Lincoln’s Lessons for Lawyers, Thomas Stipanowich)



Introduction A civilised system of government demands that a means for just and peaceful dispute resolution be made available to all citizens to determine their civil rights1. A civil justice system sustaining social stability and economic goals is of vital importance for any legal tradition (Genn, 2008). Though courts are the ultimate institution upholding the objectives of civil justice, dispute resolution is not necessarily court centred. It needs neither be a confrontation between two parties. In fact, most of the civil disputes are settled out of court. This essay takes the view that settlement acts rather as an integral part of the civil justice system than poses problems for it. To understand this, it is necessary to see the civil justice process reality - complex, constantly changing, dealing with multiple adverse interests and immersed in social justice and democratic issues. The Woolf Reforms are said to have revolutionized the civil justice system in England since the 26th of April 1999. The reforms have had a profound effect on the development of the culture of settlement. Ten years after, there is a broad agreement that they have been largely successful2. One of the widely approved effects of the reforms is a more co-operative approach to disputes. In other words, the Woolf reforms succeeded in encouraging even further the already popular settlements. In seeking a settlement, the parties of a dispute take the matter in their hands attempting to find a mutually acceptable solution faster, with greater liberty, and at a lower cost. Advocates of this alternative consider it to promote values of individual autonomy and liberty. However, there are doubts about settlements. The two major criticisms relate to access to justice and the rule of law. Settlements may be seen as interfering with the main function of the courts – to state what the law is. The complexity, cost and delays of the court system may be seen as pressuring parties to reach a settlement thus forfaiting their “day in court”. To assess the validity of the statement above, this essay will first consider the role settlement plays in the civil justice system. Next, the problems identified in the English civil justice will be outlined. This will set the ground for an examination of the nature of the Woolf reforms and their impact.  

Lord Diplock in Bremer Vulkan Schiffbau and Maschinenfabrik v South India Shipping Corp. [1981] AC 909, HL, p.976, cited in Genn, 2008 2 New Law Journal, 13 March 2009, Michael Zander, More harm than good?, 1



Some background on settlement In Anglo-Saxon history, there have been frequent tensions between the efforts of the king to impose court systems and the desire of communities to settle their own disputes. In the early US history, lawyers have been outlawed because the colonies desired to work things out among themselves (Ide III, 1993). In the last century in England, certain groups of stakeholders have traditionally turned to out-of-court ways to resolve their disputes. In 1838, the attempts to simplify and speed up the proceedings were not sufficient...

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