What’s wrong with our civil litigation? Why have we had to have Woolf and Jackson? Is there a solution to the cost-and-access problem?

We should be proud of our civil litigation. It is free of corruption, not beset by undue delay, with generally competent practitioners and good judges. Its product is sound.

These vital factors must not be sacrificed in the course of reform. It is respected worldwide, but for one serious flaw: it is so hideously expensive it denies access to many.

There has been an enormous increase in cost in the last half-century. Why?

1. The proliferation of information. The few documents in play when our procedure and litigation attitudes were established have been replaced – because of the copier, the computer and ever-growing means of e-communication – by seemingly limitless documents, many of which never appear on paper.

Litigation has not adapted to a century radically different from the 20th, let alone the 19th.

2. Professionals leave no stone unturned. With the growth of negligence claims and increasing regulatory and professional pressure to improve standards, the attitude of lawyers is to leave no stone unturned, even though much of the work done serves only to demonstrate compliance, and not to promote the client’s case.

Cases must be prepared on the basis not of what should happen, but of what might happen - bearing in mind all possibilities arising from opponents’ tactics, unforeseen evidence emerging and many other unpredictable events. Inevitably we do more work than will be of real benefit to the client or to the determination.

3. Litigation cannot be automated. Many labour-intensive personal services (e.g. photography, travel agency and banking) have become automated. We have grown accustomed to services becoming quicker and cheaper, but litigation, human, adversarial and competitive, cannot be performed by machine. It demands ever-more human, qualified, expensive input.

This unholy trinity of cost-increasing factors applies at every successive stage: disclosure, fact witnesses, experts, trial. None of the three factors is likely to decline.

Unless something radical is done, the inevitable rise in cost will continue. Even more litigants will be excluded by cost.

Woolf reduced delay with trial timetables and (accidentally) by reducing the court traffic so severely that hearings are now available without much delay. Woolf did not reduce cost – just the opposite – because his case management regime was never funded by government. Woolf was followed by much satellite cost litigation.

The Jackson debate is more about who should bear the cost, than about reducing cost.

Is there some way we can reduce cost without unduly sacrificing quality?

Yes: introduce a two-stage process in which Stage 1 is an obligatory provisional assessment of the merits and quantum by a judicial officer at a very early stage in every case, on the basis of limited material and a short hearing in appropriate cases only.

At Stage 2 any party dissatisfied with the provisional assessment would be entitled to proceed in the conventional way to trial, subject to very rigorous case management, particularly as to disclosure and costs including security for costs either way.

Many cases (I assume 80%) would be resolved at or shortly after Stage 1, freeing up court resources for the case management of the 20% which do proceed to Stage 2.

No-one would be denied the right to the full trial procedure but, if the dissatisfied party proceeded to Stage 2, the case would be closely controlled to protect the opponent’s costs position.

What is the justification for this? First, as an extension of the case management advocated by Woolf it would require only a modest new addition to the rules; for Stage 2 the rules would remain unchanged.

Second, courts are understandably reluctant to make findings on the merits before a full trial but in early hearings in which some assessment of the merits is necessary (interlocutory injunctions, summary judgment, security for costs etc) the court generally gets it right, and the outcome after the full trial and attendant expense is more often than not substantially the same as the initial assessment.

We cannot afford the luxury of deferring in every case the assessment of liability and quantum to a trial.

The courts deserve to be entrusted with the duty to make provisional assessments in the interest of wider access.

The state will have to fund the necessary judicial officers of appropriate calibre (as it should have funded proper case management after Woolf), but if after Stage 1 only 20% of cases remain "live" that expenditure should be recouped in Stage 2.

The two-stage process will not be perfect (what is?) but it will give every litigant the benefit of a judicial decision after a short time and at modest cost.

Provisional assessment may be "right" only 80% of the time, but if the case goes into Stage 2, neither should be worse off than under the current system: the dissatisfied party may still proceed, and the satisfied party will have the benefit of rigorous case management and costs protection.

In the majority of cases the expenditure for the parties and for the state will end after Stage 1.

Under the present system, if unchanged, the judicial decision when made may be nearer to perfect, but many litigants are denied the opportunity, because of cost and costs-risk, of having any decision at all.

The state cannot be ambivalent about funding a litigation system appropriate for the age we live in. Like drains (which we also cannot live without but notice only when they go wrong) it is an essential element of the infrastructure of a modern state.

Government cannot have it both ways: if it wants improved access it will have to contribute more funding.

To many this suggestion will sound unacceptably radical and a threat to the quality of our litigation, but the nation cannot afford the perfection provided by a system forged in an era long since superseded by a rapidly-changing world.

Redistributing the cost is insufficient: to reduce cost effectively we must be prepared to change our procedure as radically as our world has changed.

The Stage 1 threat to quality is less than the current threat to access presented by escalating cost. If we do not change the procedure, the cost-and-access problem can only get worse.

Seamus Smyth is senior partner in Carter Lemon Camerons LLP and President of the London Solicitors Litigation Association, but the views expressed in this article are entirely personal.