After visiting an online court for the first time, I have to report that the initial signs appear less than encouraging.
My ‘visit’, of course, took place online – on a laptop computer operated by developers from HM Courts and Tribunals Service (HMCTS). In a room at the House of Commons, they showed me a prototype for the money claims service they are currently testing with invited claimants. At the moment, it works only if users click ‘I’m making the claim for myself’. Select ‘I’m a legal representative’ and you’ll be directed back to existing paper processes.
Sensing that this was not the answer readers of Counsel might want to hear, the justice minister intervened at this point in the demonstration. Sir Oliver Heald QC MP told me that HMCTS was looking at extending the service to allow lawyers to offer advice on the merits of a claim at key points, for which fixed costs could be claimed from the other side. And Susan Acland-Hood, chief executive of HMCTS, added that her staff were in discussion with lawyers’ representatives about refinements that would be introduced for professional users. They would be able to bypass some of the early questions designed for litigants in person and, in due course, upload bulk claims from their own systems.
Through a process of trial and error, the developers are discovering that even the most basic terms can be misunderstood by non-lawyers. So, rather than being asked to identify the claimant and defendant, you’ll be asked for ‘your’ name and address and ‘their’ contact details. Users of the new service will be told at an early stage how high the court fees are likely to be and they will be encouraged to settle their disputes at every stage.
Opportunities to be seized by the Bar
And here, of course, is where the far-sighted barrister should seize the opportunities that lie ahead. There should be no reason why barristers would not be able to charge for providing what Heald called ‘unbundled nuggets of advice’ at key points in a claim.
That, after all, was what Lord Justice Briggs said in his report to the Master of the Rolls last July. In recommending the introduction of computerised civil litigation, the appeal judge insisted he was not calling for a court without lawyers. While the aim was to design processes that could be used by lawyers and non-lawyers alike, claimants and defendants would still need early bespoke advice on the merits of individual cases from qualified lawyers.
‘The Bar does promote direct public access,’ Briggs LJ noted, ‘but is apprehensive that it lacks the business structures and investment which would enable it to compete with solicitors as the would-be litigant’s first port of call. Many of its members regard the essence of the Bar as being a reference profession, mainly accessible through solicitors, rather than in direct competition with them.’ But it was time the Bar faced up to these professional difficulties and overcame them, he argued.
Prisons and Courts Bill
Time moves on and the government’s Prisons and Courts Bill, which paves the way for online litigation, had its second reading in the Commons on 20 March. [Following the snap general election announcement, the Bill is unlikely to continue in this session before Parliament is dissolved.]
‘This Bill,’ said the Justice Secretary Elizabeth Truss, ‘introduces a new online court which will enable people to resolve civil claims of up to £25,000 simply and easily online.’
It may introduce an online civil court but it certainly doesn’t create it. Nor is there any mention in the Bill of a claims limit, though the figure of £25,000 does appear in the government’s delegated powers memorandum.
The closest the Bill gets to creating a new court is in clauses 37-45, which allow for ‘online procedure rules’ to be made in civil proceedings, family proceedings and tribunals. These rules must support innovative methods of resolving disputes.
What’s not wanted, then, are procedures that can be followed only by trained advocates. But that’s not to say that barristers will no longer be able to market their expertise. Even the most computer-literate litigants will benefit from a friendly voice on the phone as they complete an online form. And although the aim is to resolve as many disputes as possible without the need for a formal hearing, there will be times when clients – and not just defendants – will benefit from representation.
An online procedure rules committee will be established to make the rules – the first time a single rules committee has had to deal with three different jurisdictions. Its rules may provide for proceedings of a specified kind to be taken in a different court or tribunal from the one in which they are taken under the existing civil, family or tribunal procedure rules. Proceedings that would currently be heard in separate courts or tribunals may be taken together.
The Lord Chancellor may disallow rules made by the committee and can require rules to be made. And there is a handy Henry VIII power allowing her to repeal any primary legislation which may get in the way – a power the government says may be used to regularise and modernise terminology in existing statutes.
Concerns of the profession
Before MPs started considering the Bill in detail, they took evidence from groups affected by it. Richard Miller, head of justice at the Law Society, said lawyers would have a different role in the online civil court, but there would still be ‘key stages within any case where good-quality legal advice will be essential if the system is to work effectively’. Endorsing that approach, Professor Richard Susskind, IT adviser to the Lord Chief Justice, said that ‘no one in the world has yet delivered an integrated service of the sort that the Law Society is sensibly anticipating, where lawyers can be involved in a structured, systematic way in the new process’. While accepting that there would be times when it would be ‘beneficial to have the participation of lawyers… in a more modular, occasional way’, Susskind insisted that ‘the law is no more there to provide a living for lawyers than ill health is there to provide a living for doctors’.
Although the Bill is not expected to become law until the autumn, a rules committee will soon be operating in shadow form. Mr Justice Langstaff has been asked to chair it and its members include a senior barrister, as well as consumer representatives. The committee must make sure the rules are both simple and simply expressed. Practice and procedure must be accessible and fair so that disputes may be resolved quickly and efficiently.
It had been thought the Bill might create an entirely new jurisdiction, as Briggs LJ had urged in his final report. ‘I continue to regard making the online court a new and wholly separate court as a very important element in bringing about the necessary culture change,’ he said, ‘and I so recommend.’
That proved to be too ambitious, though it’s not entirely clear why. Perhaps the problem was deciding what name should appear on the virtual door: Briggs LJ still wants to call it the online solutions court, although the Lord Chief Justice has offered a bottle of champagne to anyone who can persuade him of a better suggestion. In the meantime, ‘online court’ remains a convenient shorthand for new procedures in the existing courts and tribunals. Once that name is enshrined in statute, I suspect it will stick.
Heald told me that rather than confine the new jurisdiction to money claims as Briggs LJ had recommended, ministers thought it desirable to have online procedures that were flexible enough to cover family proceedings and tribunal work as well. And those procedures are already being tested. People seeking a divorce or applying for probate were already being invited to take part in pilots, Acland-Hood explained.
Truss has argued that online civil procedures will increase access to justice because it will be easier and cheaper for litigants to bring and defend claims. For that to be achieved, though, the government must resist the temptation to set court fees at the extortionate levels we have seen recently.
It’s easy for cynics to say that any new government-sponsored IT system is bound to go wrong. And it’s tempting to see the online courts as a way of dumbing down litigation while dispensing with highly-trained litigators. But there is no doubt that high-value disputes will continue to rely on high-quality tailored advice. Despite my initial misgivings, the agile, adaptable advocate will find there is work to be done. ●
Contributor Joshua Rozenberg QC (Hon) is a British legal commentator and journalist
The birth of online courts
Online courts first came to the English and Welsh justice system in February 2015, in a report entitled Online Dispute Resolution for Low Value Civil Claims, described at its launch by Lord Dyson, then Master of the Rolls, as ‘an exciting milestone in the history of our civil justice system’.
The report was written by the Online Dispute Resolution Advisory Group of the Civil Justice Council whose remit had been to explore the potential and limitations of online techniques for resolving civil claims of less than £25,000. The group argued that the traditional court system was too costly, slow and complex, especially for litigants in person with small claims. Its principal recommendation was that a new, three-tier Internet-based court service should be established.
- The first tier would provide online ‘evaluation’, helping users with grievances to classify and categorise their problems, understand their rights and obligations, and to be aware of their available options and remedies.
- The second tier would offer online facilitation – disputes would be brought to speedy, fair conclusions without involving judges. Communicating across the internet, facilitators would review papers and arguments and help parties by mediating and negotiating, where necessary using telephone conferencing.
- The third tier would be run by fully-fledged judges, working online, deciding suitable cases on the basis of papers submitted to them electronically. This would be part of a structured process of online pleading. Again this would be supported by telephone conferencing and, eventually, by video links.
Two years on, do I remain as personally committed to the idea of online courts? Absolutely. At a time when our civil justice system is creaking, I remain resolutely of the view that online courts will bring two great benefits – greater access to justice (a more affordable and user-friendly service) and substantial cost savings, both for individual litigants as well for the court system. In a decade, we will look back and wonder why we didn’t introduce them sooner.
Contributor Professor Richard Susskind was chair of the Online Dispute Resolution Advisory Group of the Civil Justice Council.
Technology is far from a fix-all: the Bar Council view
Digitisation of evidence, online decision trees and virtual hearings: these are three different innovations and it is a mistake to conflate them.
Digitisation has happened in the Crown court. Virtual hearings have arrived and are making inroads in various quarters; online decision trees are contemplated across our various jurisdictions.
It may all be described as a product of the inevitable march of technology. Whilst technology has the potential to enhance our system of justice and provide greater convenience to some court users, we must guard against convenience and cost overriding other important considerations.
Virtual hearings in criminal cases should remain the exception rather than the norm. It is essential that there is no diminution in the quality of open justice. Criminal proceedings are generally better conducted when the participants are together in one place. Most family proceedings fall into the same category. And much of the real business of a preliminary hearing is conducted in meeting rooms and corridors adjoining the court. However good the technology, some conversations will always be better face-to-face.
Where the stakes are less high, there is more room for the streamlined efficiencies that technology brings. Even then, users need to make an informed choice and so must be made aware of their right to consult a lawyer. If we are not careful, proposals to invite defendants to use an online procedure to indicate a plea, or to opt for a summary trial instead of a Crown court jury trial, risk trivialising potentially serious consequences for those accused of committing offences.
There are other strains on our justice system which technology won’t fix. Until our courts can function more effectively and with the appropriate funding, expenditure on online procedures should be limited to low level offences which attract a fixed penalty notice.
Contributor Andrew Langdon QC, Chairman of the Bar