THE EVOLVING PRACTICE OF “FRONTLOADING” IN CIVIL ACTIONS IN NIGERIA

– Ngozi Alili Esq

INTRODUCTION:  THE WOOLF’S REFORMS
The 26th day of April, 1999, frequently referred to as “Woolf’s Day”, saw the coming into force of the most far-reaching reforms to court procedure for one and a quarter decades. The “Woolf’s Reforms”, as they are colloquially known, affected not only cases that were commenced at the court after April 1999 but also existing cases at this date and the way cases should be handled before proceedings are commenced. These reforms are now embodied in the English (Civil Procedure) Rules 19991.
The Woolf’s Reforms were carried out because Lord Woolf, identified the following principal problems with the old system:”
a. Litigation was too expensive, in that costs often exceeded the value of the claim
b. Litigation was too slow in bringing a case to a conclusion.
c. There was a lack of equality between litigants who were wealthy and those who were not.
d. Litigation was too uncertain in terms of time and costs.
e. The system was incomprehensible to many litigants
f. The system was too fragmented since there was no clear overall responsibility for the administration of civil justice and
g. Litigation was to adversarial, as cases were run by the parties and not by the courts with the rules all too often ignored by the parties and not enforced by the courts
The overriding objective of the new civil procedure Rules (CPR) which, is the product of the Woolf Reforms is the development of a system which will enable the courts to deal with cases justly, which broadly means that the new Rules are designed to make litigation in England and Wales quicker, and cheaper.
According to John Miles:

The English Courts will therefore deal with cases in a manner proportionate to their value, size, complexity and the relative financial positions of the parties

It must be pointed out that such concepts as value, size, complexity etc are too abstract and may therefore be difficult to determine for the purposes of weighing the financial positions of parties in any particular case. Sometimes, the challenges posed by litigation constitute a major focus by the parties thereto rather than size and values to be derived by the litigants. Nonetheless, the Civil Procedure Rules (CPR) as reformed by Lord Woolf appear to affect Commercial Litigation in two significant respects:
(a) Firstly, in the past, it has been regarded as a legitimate tactic for a claimant to use its superior resources to force an economically weaker opponent to enter into any unfavourable settlement by making frequent applications to the court, thereby taking up an excessive amount of the opponents time and putting the opponent to considerable expense, and;

(b) Secondly, when acting for a client with a weak case, many solicitors would previously have advised the use of delaying tactics in the hope of forcing the other party to settle on unfavourable terms because the cost of the case was exceeding their “litigation budget”. The court’s new case management powers under the new Civil Procedure Rules enable it to put an end to such tactics, in pursuance of the overriding objective. Unnecessary applications can now result in cost consequences against the applicant, and the courts can push proceedings along as quickly as possible .

In essence, the reforms have through case management techniques thereby introduced, transferred the control of litigation from the parties and their lawyers to the courts. Judges and other court officials have been given considerable areas of discretion by the new Civil Procedure Rules regime to take steps in the proceedings and to make orders without necessarily having received applications from either party. Another motivating factor is the desire to increase access to justice and to resolve disputes by means other than litigation which means that the courts will encourage the parties to settle disputes without resorting to the courts, through the Alternative Dispute Resolution (ADR) in deserving circumstances 6. The reforms were introduced with the aim of speeding up trial procedure and reducing time and cost of litigation.