The Philosophy underpinning the New Rules
It should come as no surprise that the philosophy underpinning the Jackson reforms is the same philosophy that underpinned the Woolf reforms. My predecessor but one as Master of the Rolls, Lord Clarke, made sure of that in setting Sir Rupert Jackson’s terms of reference. He did so because those terms of reference were entirely consistent with, and required Sir Rupert to make recommendations that would further, Lord Woolf’s new approach to litigation. As Lord Clarke explained in 2009 the task he set Sir Rupert, was to conduct
‘a review that is entirely consistent with the approach Woolf advocated in his two reports. . . . [to]. . . look for answers to the problems of cost consistent with the new approach to litigation Woolf’s reforms introduced. That is to say, whatever conclusions [the review] reaches will be ones that are consistent with the overriding objective and the commitment to proportionality to which it gives expression.’
Sir Rupert’s task then was to consider how the Civil Procedure Rules had operated since their introduction in 1999 and to do so in order to make recommendations that would better enable litigation to be conducted consistently with proportionality. In other words, to make recommendations that would ensure that the justice system was better able to implement the aim of the Woolf reform. It was a review that was not intended to question ‘the shift in judicial philosophy’ in civil litigation effected by the overriding objective, which was acknowledged and endorsed by the House of Lords in Three Rivers. It was to identify why and how it had not properly taken effect and how that failure could be remedied.
The Review ranged wider than the rules of court. It also required a consideration of Conditional Fee Agreements, how they had operated in practice, and the effect they had had post-2000 on the justice system. It came as no surprise to many, not least those who had criticised the introduction of reformed CFAs in 2000 as a consequence of the Access to Justice Act 1999, that they caused an increase in the cost of litigation. It was a real irony that in doing so, they fatally undermined the Woolf reforms’ aim of reducing cost just as the CPR was being introduced. As Sir Rupert concluded they were the major cause of disproportionality in costs