Modern warfare – what to expect and how litigation has changed

There is a reluctance to call litigation ‘litigation’ nowadays with many firms, including EMW, adopting  ‘dispute resolution’ as the most common name used for a team of lawyers that, on the whole, attempt to initiate litigation or defend it.

Without wanting to sound too melodramatic, it is hard to over emphasise the importance of access to justice for a functioning modern democracy (or more simply put, how else are you going to get recourse where someone has failed to come through on their side of the bargain?  Two burly men, a sack of doorknobs?. There is, however, no doubt that litigation has undergone significant transformations since the late last century (it feels slightly odd writing that) driven primarily by the Woolf Reforms, the Civil Procedure Rules (CPR), and a growing emphasis on Alternative Dispute Resolution (ADR).

The Woolf Reforms

The Woolf Reforms, initiated by Lord Woolf in 1999, marked a watershed moment in litigation. Their aim was to make the litigation process more accessible, cost-effective, and fair. The reforms introduced several key elements:

1. Case Management: The concept of “case management,” placing greater responsibility on the courts to actively manage cases. This included setting timetables and encouraging early settlement discussions.

2. Pre-Action Protocols: The introduction of pre-action protocols required parties to engage in correspondence and consider ADR before filing a claim. No more rushing to court, issuing a claim and slapping it on someone’s desk.  This helped in early resolution and reduced the number of cases ending up in court.

3. Access to Justice: The Woolf Reforms emphasised the importance of providing access to justice for all, ensuring that litigation was not prohibitively expensive or overly complex.  Not sure how successful this has been.

The Civil Procedure Rules (CPR)

If the Woolf Reforms can be described as the ‘destination’, the CPR was the ‘road map’, instrumental in converting the Woolf Reforms into practical legal procedures. The CPR brought significant changes to the practice of litigation:

1. Standardisation: The CPR established standardised procedures, forms, and rules for civil litigation. Sounds a bit boring but this helped streamline the process and reduce uncertainty.

2. Overriding Objective: The CPR introduced the concept of the “overriding objective,” emphasising the court’s duty to deal with cases justly and efficiently. This led to the early identification of issues, promoting proportionality in litigation.

3. Costs Management: The CPR incorporated rules for costs management, ensuring that litigation costs remained proportionate to the value and complexity of the case.  Despite this, don’t worry, due to the flawed human nature, you will still get your fair share of salacious Daily Mail stories regarding boundary disputes and 000s of legal costs.

The emphasis on Alternative Dispute Resolution (ADR)

One of the most notable developments following the Woolf Reforms and the CPR is the increased emphasis on ADR for resolving disputes outside the courtroom. This shift is driven by various factors:

1. Cost-Effectiveness: Often more cost-effective than traditional litigation, as they require less time and resources.

2. Speed: ADR can mean that lengthy court proceedings are avoided.

3. Confidentiality: ADR processes can protect sensitive information/relationships.

4. Flexibility: Greater control over the process and can tailor ADR methods to suit their needs.

‘Why can’t we all just get along’?

Because we can’t, ok! Historically, litigation has an adversarial approach, parties employing aggressive tactics to secure their desired outcomes. This approach often resulted in lengthy and costly court battles, which were not aligned with the objectives of the Woolf Reforms. Does this mean that litigators are hanging up their Smith and Wesson?  No, but aggressiveness in litigation has evolved:

1. Shift from Hostility to Cooperation: The Woolf Reforms emphasised the importance of cooperation and good faith between parties involved in litigation. The adversarial approach is discouraged in favour of parties working together to identify common ground, exchange information, and explore settlement options. This reduces the hostility and aggression commonly associated with litigation.

2. Early Settlement Discussions: Parties are encouraged to engage in early settlement discussions through pre-action protocols. This provides an opportunity for amicable resolutions before escalating the dispute to formal legal proceedings (i.e. before things ‘get out of hand’). Aggressive posturing and tactics are less likely to be effective.

3. Case Management and Proportionality: The CPR reinforced the idea that litigation should be conducted in a proportionate and cost-effective manner. This reality discourages overly aggressive litigation tactics that could escalate costs and prolong proceedings. Courts began actively managing cases to ensure that parties adhered to the principles of proportionality and cooperation.

4. ADR as an Alternative: The growing emphasis on ADR, especially mediation, provided an alternative to aggressive litigation. Parties can opt for mediation to resolve their disputes in a more collaborative and less confrontational manner.

Ultimately, some things don’t change, and litigation should be seen as a means to an end.  While the methods above have discouraged unnecessary aggression, they did not eliminate the need for assertiveness in litigation. Parties have the right to vigorously represent their interests, but within the bounds of the new framework that promotes cooperation, proportionality, and cost-effectiveness, just make sure your lawyers are not picking fights where they don’t need to.

Adrian McClinton is a Partner and Head of Dispute Resolution across all regions at EMW Law LLP.  Adrian specialises in Property Litigation and his property litigation team’s client base is currently land owners/landlords and high net worth individuals whose portfolios and ownership range from the small (1- 20 properties) to the very large (70,000 + properties).  Adrian also acts for numerous FTSE 100 companies, ensuring that their property interests are protected.

https://www.emwlaw.com/