Several years ago the British government set up a commission to review the workings of the civil justice system in England and Wales under the chairmanship of Lord Woolf, a senior judge who is currently the Master of the Rolls (effectively the Chief Judge of the Court of Appeal). Lord Woolf's Reforms to the Civil Justice System came into effect April 26, 1999 and have been described as the biggest shake-up this century.

The changes are aimed at reducing delay, expense, complexity and uncertainty of pursuing cases through the Civil Courts and to widen access to justice by making court cases simpler and more affordable. The reforms also sweep away Latin phrases and traditional terms that have been used for centuries by lawyers, replacing them with terms that are intended to be more layman-friendly.

For example, "Writs" are now called "Claim Forms", "Pleadings" are now referred to as "Statements of Case", a "Mareva Injunction" is now known as a "Freezing Order", an "Anton Piller Order" becomes a "Search Order", "Plaintiffs" are now called "Claimants", "Ex-Parte" is now known as "Without Notice", "Inter-Partes" is now called "With Notice", "In Camera" is now referred to as "In Private", and "Discovery" is now to be called "Disclosure".

The overriding objective of the Woolf Reforms is to enable the Court to deal with cases justly which means:


The parties to an action have a duty to help the court to further the overriding objectives. In return the court has a duty to provide active case management which includes:


The rules apply to all High Court and County Court proceedings so there is no longer any difference in practice between the Patents Court of the High Court and the Patents County Court and, furthermore, there remains no constraint placed upon the value of claims that may be heard by the Patents County Court. The parties retain the choice as to whether to commence proceedings in the High Court or the Patents County Court and it is not expected that there will be any change in procedure for referring a case from one Court to the other.

Cases fall into one of three categories, a small claims track for claims worth up to £5,000, a fast track for claims valued between £5,000 and £15,000 and a multitrack procedure for claims in excess of £15,000. Patent cases have been decreed as being multi-track and they will have to comply with a strict timetable and much shorter periods are given for filing responses. In many ways the High Court procedure commencing an Action has been brought closer to the previous rules before the Patents County Court where better particularization of a claimant's case is required at the beginning of an Action. For example, when giving directions and when exercising its discretion as to whether to award the winning party its costs incurred in the action, the court will encourage the parties to set out in pre-Action correspondence the full claim and defense and to disclose relevant documents. A failure to comply leading to unnecessary proceedings or costs may result in a Court penalizing the party at fault by ordering it to pay the other party's costs on an indemnity basis (i.e., a basis that is likely to result in a greater award to the party receiving the award than is usual) and to pay damages. Costs and damages may be awarded at 10% above the bank base rate. It is expected that more use will be made of offers to settle which, if refused and the offer is later matched at trial, the party refusing the offer may be penalized by costs and interest at 10% above base rate.

Where a defendant makes an offer to settle, then payment of money must actually be paid into Court.

It is thought that greater use of summary judgment proceedings will be made. The Court will have a Preliminary Hearing to decide which issues it believes are pertinent and which should not be pursued so that if an issue, in the Judge's opinion, has a limited prospect of success, then it will be summarily dismissed.

In deciding the amount of costs, account will be taken of proportionality, the conduct of the parties including before as well as during proceedings, and the efforts made, if any, before and during the proceedings in order to resolve the dispute, the amount or value of any money or property involved, the importance of the matter to the parties, the particular complexity of the matter or the difficulty or the novelty of the questions raised, the skill, effort, specialized knowledge and responsibility involved and the time spent on the case. Pre-Action disclosure is a matter for discretion of the court and close scrutiny will be made by the court of the necessity for disclosure and limiting the types of documents that may be sought, for example in a patent infringement case documents concerning the issue of validity may be restricted to documents coming into existence in a period commencing two years before the earliest claimed priority date and finishing two years after that date.

Lord Woolf was critical of the way pleadings were handled which, in his view, failed to set out the facts clearly and impeded the identification of issues concentrating too much on causes of action and defenses rather than facts. To overcome these difficulties, particulars of claims must now include a concise statement of the facts on which the claimant relies, if the claimant is seeking interest, a statement to that effect and the details for doing so, if the claimant is seeking aggravated or exemplary damages, a statement to that effect and his grounds for claiming them. Similarly, in a defense the defendant must state which of the allegations in the particulars or claim he denies, which allegations he is unable to admit or deny, but which he requires the claimant to prove, and which allegations he admits. Where the defendant denies an allegation he must state his reasons for doing so and if he intends to put forward a different version of the events from that given by the claimant he must state his own version. Thus, bare denials in a defense will no longer be permitted.

All statements of case including the claim form must have a Statement of Truth made by the party that it believes that the facts stated in the document are true. The person making the statement or causing it to be made must have an "honest belief" that it is true, otherwise proceedings for contempt of court may be brought. The Statement of Truth must be signed by the party or its legal representative and a Statement of Case may be struck out if it is not verified by a Statement of Truth. Practice directions provide that where a document is being verified by a company, the Statement of Truth must be signed by a person in a "senior position", e.g., a Director, the Treasurer, Secretary, or Chief Executive. The Statement of Truth, although it is not made clear in the rules, is believed to apply to primary facts only.

New rules are designed to ensure that an expert has an overriding duty to help the Court and not merely to be a mouthpiece for one or other party. Although the Woolf Report favors a single expert to assist the Court, there is unlikely to be any change from current practice where each side has their own expert, although the number of experts used will be "proportionate" and the Court will certainly exercise its discretion as to costs if more than the number of experts thought to be appropriate by the Court are used. Experts will be required in their report to state the substance of their instructions, whether written or otherwise, that they received from their instructing party or party's legal representative. Such instructions are not privileged from disclosure to the other side, although the Court will not order disclosure unless the Court is satisfied that there are reasonable grounds to consider the state of the expert's report as being inaccurate or incomplete.

A lacuna in the new rules exists where there is now an obligation on parties to set out their case in pre-Action correspondence. Under Section 70 of the U.K. Patents Act 1997 an Action may be brought for unjustified threats if a party does little more than bring the defendant's notice to a Patent or Registered Design or Trade Mark that is alleged to be infringed. However, the specialist IP Judge's attention has been drawn to this lacuna and so long as "threats" are made bona fide without prejudice in correspondence with a view to fostering a non-litigious compromise, the onus will be on the aggrieved party to show that the Court should lift the veil of privilege provided by such correspondence.

Although the new rules envisage Alternative Dispute Resolution, it is thought that this will be little used in IP actions.

It is expected that the Patent Office will bring its rules into line with the new civil procedure rules.