Clare Canning: Yet another litigation review cannot paper over the cracks

So, yet another review of the civil litigation system. This time it is into costs and it is going to be 'fundamental'. On the face of it, Lord Justice Jackson's brief is wide-ranging. He is to look at all civil litigation from fast track to mega-case, taking into account views on case management, conditional fee arrangements, third-party funding, cost regimes in other jurisdictions, costs shifting rules and more. The review, we are told, is the judiciary's response to the failure of the Woolf reforms to control the cost of civil justice. Do we, or should we, have any realistic hope that by 31 December 2009 Jackson and his colleagues will have happened upon the key to low-cost proportionate civil justice for all?

We keep coming back to a few consistent themes. First, with the best will in the world, complex, high-value litigation is never going to come cheap. You only need to read the recent Digicel decision on e-disclosure to appreciate the cost implications for large-scale commercial litigation. Similarly, the availability of witness statements marked up with hypertext links to the electronic bundles makes eminent sense in a lengthy trial - but at a cost. Second, how come, despite varied attempts to change the rules and behaviour of the parties and judiciary, not that much seems to have changed? We still have unmeritorious cases that run on for too long and cases that are unnecessarily and disproportionably expensive. Third, does it make sense to come up with the same solutions for all civil litigation such that perhaps the answer is to abolish the English Costs Rule? Finally, how can we maintain the reputation of the English courts as an attractive forum for dispute resolution?

Courtesy of Lord Woolf, we have a wide range of rules and judicial discretion built into the existing civil litigation system such that the judiciary can stop disproportionate behaviour and expense. Backed by the Court of Appeal, particularly on summary applications, there is no reason why unmeritorious claims should be allowed to grind on with the attendant disproportionate costs and waste of resources. We are waiting to see what impact the pilot of the Long Trials Working Party in the Commercial Court has on case management going forward, but it is clear that with greater judicial involvement from the beginning of proceedings, a tighter control of the conduct of even complex cases is possible within the current system. We do not need radical reform to police litigation. We do need more judicial resources and a cultural shift in our courts.

Relevant to this is the example of the German courts. Jackson will be looking at the costs rules in other jurisdictions, of which Germany is an interesting example. As the Forum of Insurance Lawyers has explained in its briefing paper addressing Jackson's review, the approach of the German system is heavily reliant on fixed costs, and the cost of litigation is much lower than in England and Wales. There are a number of differences in the systems overall - for example, in Germany there is no pre-trial disclosure. Most notably, it is believed that there are 10 times more judges per capita in Germany than in England and Wales. In general, German lawyers spend less time and German judges more time on cases in the court system. The key to the German system seems, therefore, to be greater commitment to central funding of the system. Wouldn't we expect to see radical changes in behaviour and cost in our system if we had 10 times more judges per capita than we currently have? Isn't this far more likely to impact the system helpfully than, say, abolishing the English Costs Rule or encouraging an expansion of third-party funding?

As practitioners, how can we help maintain the reputation of the English Courts as an attractive forum for disputes resolution? We start with an advantage: our courts are recognised as providing reasoned, reliable adjudication of commercial disputes without the uncertainties surrounding jury trials. While this may come at an increased cost, I have yet to come across a client who, provided with a realistic view of the merits of their position and a transparent estimate of costs, didn't see the advantage of our system. As ever, bad practice can lead to bad reform.

Clare Canning is a partner in the litigation group at Mayer Brown.