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Four-year target for 'digital court' in England ambitious, but not unworkable, says expert

FOCUS: An ambitious new report proposes digitising all court processes in England and Wales within four years - but this, as the report itself recognises, will require significant behavioural changes from practitioners if it is to come to fruition.18 Feb 2016

In the biggest shake-up of the court system since the Woolf Reforms in the late 1990s, the Civil Courts Structure Review undertaken by Lord Justice Briggs also proposes the introduction of an online court for small claims. The review is due to be completed by the end of July 2016, and an interim report (141-page / 713KB PDF) was published for consultation last month.

The central theme of the review is the "radical digitisation" of court processes to replace the current reliance on paper-based systems. If implemented successfully, this would "completely transform the courts' working practices, and open up possibilities for modernisation, efficiency and improved service beyond anything currently available or possible". The review accepts that current court structure is antiquated and hampered by the reliance on paper-based systems and procedures. It suggests that full modernisation and reform is "simply unachievable" without up to date and efficient IT.

Lord Justice Briggs recognises that such radical change will require "both a willing suspension of disbelief (at which many of my consultees have baulked) and the exercise of an informed imagination about the contours of a brave new paperless world for which there are few if any precedents which can be visited or studied".

For practitioners involved in large-scale commercial disputes in the High Court, mainly centred in the Rolls Building in London, any change which undermines that court's reputation for excellence will be cause for grave concern. However, the proposals as drafted will have the most significant effect on the county court, which has a less than stellar reputation for efficiency and reliability in its back-office functions, and to some extent the district registries of the High Court. In particular, there is no suggestion that 'case officers' take over some of the work in judges in the High Court.

A possible merger of the High Court and county court is not part of the current review, but could foreseeably follow some of the changes proposed. This would not be likely to enhance the reputation of the High Court for quality dispute resolution, with potentially serious implications for London as a centre for commercial litigation.

The background

The Civil Courts Structure Review was commissioned in July 2015 by the Lord Chief Justice and the Master of the Rolls, to coincide with a programme for reform of the courts by Her Majesty's Courts and Tribunals Service (HMCTS). The HMCTS review is focusing on increasing the role played by digital tools and modern IT in the day to day administration of justice, reducing its reliance on buildings and allocating some of the work currently done by judges to court officials, to be known as 'case officers', under judicial supervision.

The large scale withdrawal of Legal Aid funding for civil litigation and the complexity of civil procedure are also contributing to the need for reform. These developments have resulted in a significant proportion of court users, as litigants in person, being hampered in their use of the court system.

The stated intension of HMCTS is to digitise the whole of the processes of the courts within four years, subject to funding and technical constraints. This could be done either by replicating the existing processes in digital form or, more ambitiously, introducing new processes and procedures which are not possible on paper. HMCTS favours the latter approach - including, in particular, the creation of an online court for the resolution of straightforward damages or debt claims up to, say, £25,000 in value.

While the vision and ambition behind the proposals is to be applauded, cynics, particularly those who have been involved in disputes over failed government IT projects, may be sceptical about the possibility of achieving such a radical objective at all, let alone within four years. As the report recognises, this objective will require significant behavioural and cultural change as well.

However, if the court system can be freed from the constraints of the mountains of paper it currently has to deal with, the second main change envisaged by HMCTS becomes possible - namely, the reduction in the number of court buildings. The administrative functions of the court system could be carried out in a central location, with many existing court buildings closed and the remainder used as 'hearing centres'. The closure of further court buildings announced this month by the government suggests, however, that it may not wait for full digitisation before reducing the size of the court estate.

An online court

Lord Justice Briggs' most eye-catching proposal is the creation of an online court, which would be designed for the resolution of fairly simple and low-value disputes without the need for lawyers. This court is likely to adopt a three-tier structure involving:

(i) an automated process using software to assist litigants in identifying the nature of and issues in dispute;

(ii) a mix of conciliation and case management conducted mainly by a 'case officer' by telephone or online but not face to face; and

(iii) determination by judges either on the documents, by telephone, by video or face to face.

The online court would include a 'triage' system to enable litigants in person to prepare a basic statement of case. There would also be help for those with difficulty using computers.

The idea of making the court system accessible to litigants, many of whom have no access to justice because they cannot afford lawyers, is a welcome one. However, the online court will also be of interest to large corporates who may have to make use of it either as claimants or defendants.

The online court is to some extent inspired by eBay's automated dispute resolution service, which deals with more disputes than the whole of the civil court system. However, any concern that achieving justice in every case may be sacrificed in favour of overall efficiency would be misplaced: under the proposals as drafted, decisions on substantive claims in the online court would still generally be made by judges even if a traditional face to face hearing is not held, and would be subject to appeal.

Appeal court reforms

The report's other main recommendations relate to the need to reduce the excessive workload on the Court of Appeal. This has led to delays in determining applications for permission to appeal in particular, which are dealt with first on paper but may be renewed orally.

Lord Justice Briggs suggests that this may be done by increasing resources, decreasing the workload, improving efficiency or reducing service quality. Reducing service quality, in particular by removing or restricting the right to renew appeals orally, might free up court time significantly by weeding out many unmeritorious appeals. However, given that many permission applications are initially rejected on paper but subsequently granted orally, any reduction or restriction might give rise to speedier, but rougher justice.

Other proposals

The review is also considering:

  • possible changes to the financial thresholds for cases in the county court to relieve pressure on the High Court;
  • centralisation of enforcement in the county court;
  • limiting the number of routes to appeal; and
  • the simplification of processes and provision of more support for litigants in person.

Richard Dickman is a commercial litigation expert at Pinsent Masons, the law firm behind Out-Law.com.