1. Introduction
British Columbia’s executive branch Rule makers rely heavily on Lord Woolf’s 2004 English Rules as a precedent for their 2008 reform recommendations. Because the executive did little objective research, the practical advantages of copying the new English Rules remain unconvincing.
Here is a brief summary of how the English judicial system works and why it is not a useful model for British Columbia. It is based on information I recently received from an English judge.
2. England’s “Three Track” court system
Lord Woolf’s Rules developed a three track system for assigning cases to the various courts at the beginning of a civil action. Superficially, they appear based on the amount involved rather than the alleged complexity of the litigation. Here are the standards:
• Claims of up to £5,000 are assigned to Small Claims Courts
• Claims between £5,000 and £15,000 that will not exceed one day to try are “fast tracked” through the County Courts.
• Claims of over £15,000 that will last more than one day are “multi tracked” through the County Courts.
• Claims exceeding £50,000 that contain issues of exceptional complexity or public importance are tried in the High Court.
It seems there is little initial concern about “proportionality” apart from determining the amount involved. Judges in England recognize that the amount in dispute is a “very unreliable guide to the complexity of a case.” They comment that trials take longer where there are:
• A large number of disputed facts;
• Significant disputes over the construction of documents;
• Substantial or novel issues of law;
• Parties are under a disability such as needing interpreters.
For B.C., one could add to this list situations where there are lay or in person litigants appearing without counsel.
3. England’s court structure
There are three levels of courts and judges that try civil cases. In addition, there are part time judges and Recorders, something we don’t have in Canada. The judges’ jurisdiction often varies from time to time. Here is the present situation:
• District Judges. They try all Small Claims actions. Salaries about £88,109 per annum.
• Circuit Judges. Circuit Judges and some District Judges try “fast track” and some “multi-track” cases. Salaries about £123,200 per annum.
• High Court Judges. They try complex cases but increasingly these are assigned to experienced Circuit Judges. Salaries about £139,583 per annum.
• The value of a claim rarely determines what judge at what level will try a case.
• County Court judges apparently have the title “Circuit Judges.” The County Courts are the “workhorses” of the civil justice system.
4. England’s lack of oral discovery before trial
Unlike Canada, English Rules do not give the parties the important right to examine each other orally for discovery prior to trial. Nor can they orally examine or depose witnesses before trial. Evidently, English Rule makers left this out because the parties would have to hire expensive Barristers to conduct these examinations.
Lacking these important discovery tools, it seems that Lord Woolf’s Rules substituted a more expensive and time consuming discovery system of written protocols and directions. To an outsider those processes seem far less effective and more costly than oral examinations.
5. Pre-trial judicial intervention
Before the trial and after hearing from counsel, English judges may fix an equal number of hours or days that each side may have to present their case. This is similar to what many American superior court judges do at their Pre-Trial Conferences after completion of the discovery process.
6. Legal Fees
English litigants, who lose at trial, apparently have to pay the winner costs amounting to almost 100% of the winner’s legal fees. This compares to B.C. where the amount of costs paid by the loser is an indemnity covering about 35% of the winner’s legal fees. English lawyers may take a case on a contingency fee basis of “no win no fee.” However, if they do win and the defendant has “deep pockets”, it seems that successful English lawyers may collect all of their fees from the defendant.
A recent English newspaper article highlighted the fact that in medical malpractice lawsuits against National Health Service (NHS) hospitals, winning plaintiffs’ lawyers may recover fees from the NHS based on hourly rates of around £600 or approximately $1,350 Canadian. These fees are higher substantially than the fees paid by the NHS to its defence lawyers.
Based on these figures, one can see that going to trial in England exposes the losing party to a huge financial risk. That partly explains why Lord Woolf’s Rules focus on doing everything possible to avoid trials.
It is hard to find any English legal literature commenting on the need for trials in order to keep the law in touch with an ever changing society. Nor is there any discussion about the danger of lawyers and judges losing their trial skills because of fewer trials resulting in unsatisfactory judgments and more expensive appeals.
Bottom Line:
1. There are significant differences between England and British Columbia concerning important matters such as court structures, support systems, party and party cost tariffs, discovery rights, etc.
2. Hence, the B.C. executive’s reliance on Lord Woolf’s Rules as a model for British Columbia is a tragic mistake.
3 October 2008
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