Emma Colquhoun comments on the Woolf reforms
The problem: speed and cost
Most property professionals (be they occupiers, property managers, developers or investors) will have had first-hand experience of litigation and a court system which was legitimately accused of being unacceptably slow and expensive.
All change
This system is now undergoing the biggest shake-up it has experienced this century, with the introduction by the Government of new Civil Procedures Rules (which came into force on 26 April). These simplify the mechanics of litigation by unifying and clarifying the diverse and arcane practices of the High Curt and the County Court, and express-ing the whole lot in plain English.
Confrontation out; mediation in
The culture of dispute resolution is also undergoing a revolution. Instead of court litigation, the emphasis is now on alternative, more commercial methods of dispute resolution, such as mediation, conciliation and expert determination. These alternatives are now built into court procedure, so even the most wary and conservative of litigants will be encouraged to give them a shot (and may be penalised if they do not).
The property industry is familiar with expert determination in the context of rent review. Such alternative forms of dispute resolution will become more commonplace in other property disputes: for instance, parties may now turn up to mediation when a consent to assign, sublet or alter is withheld, instead of going to court.
Managing disputes from the beginning
The new regime affects the business practices of all involved in managing property disputes, because early steps (including initial correspondence) taken even before proceedings are issued will be scrutinised. Gone are the days of firing off a writ, perhaps containing a speculative claim, as a means of maximising the strength of a party's position for the ensuing negotiation. As a result defendants should find that they are spending less time and money in defending unfounded or exaggerated claims.
Parties risk being penalised on costs if they do not adopt "cards on the table" approach, setting out their claim in enough details at the outset to enable the other side to give proper consideration to whether or not it should be settled.
Court in the driving seat
Once proceedings have been issued, the court (rather than the parties) dictates the speed at which cases progress to trial. Earlier settlements will now be actively encouraged. Summary judgement will be easier to obtain and, for the first time, is available to defendants where the claimant's case has no real prospect of success. The extent of document disclosure is now tailored proportionately to the amount at stakes and costs will be reduced as a result in most cases.
Overall, the changes are good news. They present an opportunity for the court process to become a more effective and commercial way to deal with property and other disputes.
Emma Colquhoun is a member of the Contentious Property Group.
Macfarlanes have prepared a short note which summarises the main ways in which the reforms are intended to operate and an introductory booklet on how civil proceedings in England and Wales will be conducted under the new procedural framework. For more details, please contact Suzanne Clark at Macfarlanes.
This note is intended to provide general information about developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained. If you would like further information or specific advice, please contact Macfarlanes.
