In Part 1 of this article, I looked at the woefully low baseline from which any modernisation of the civil justice system here must start.
In Part 2, I want to highlight just one proposal made in the recent Civil Courts Structure Review, written by the senior judge Lord Justice Briggs. (The interim and final reports, which you can find at https://www.judiciary.gov.uk/civil-courts-structure-review/, run to some 450 pages, so please forgive me if I don’t do justice to the whole Review.)
First, one caveat. The proposal looks forward to a time of digitisation, when “the stranglehold of paper has been broken” – which, he adds wryly, “requires a willing suspension of disbelief”. But he puts a timeframe on “the achievement of a steady state within a reformed court structure”, of five years. From March 2015. Now those with long memories, or Google, will recall that I previously mentioned the Government’s e-business strategy, which proposed putting all public services online by 2005. That was written in 2000 … Further back, the communist Soviet Union had a certain penchant for five-year plans, not all of which were wildly successful. Still, one cannot fault the Review for lack of ambition.
That’s by the way. Meanwhile, digitisation of the courts can mean two different things. First, digitisation of the existing processes, requiring minimal changes to practice and procedural rules. Secondly, and more ambitiously, using IT to facilitate processes that simply cannot be carried out on paper – for example, to elicit the relevant information, evidence and documents necessary to enable the court to determine the claim, by an interactive process of question and answer. This second approach has the potential to go far beyond merely a digitised case file leading to paperless trials.
The Review – again, not lacking ambition – aims its sights squarely at the most thorough-going use of IT that could perhaps be envisioned in a system which must, at its heart, still include an element of judicial decision-making. The proposal is for nothing less than an Online Court (OC).
The OC will achieve its purposes as far as possible by automated software, both for initial triage and basic conciliation. This is designed to place on an electronic file, available both to the parties and to the court, the essential details of, and evidence about, a litigant’s case at the very outset. As the Review notes, this is in contrast to what commonly happens now, where the key facts and evidence remain buried in the minds of the litigants and in their ill-assorted bundles of documents even when they arrive at court for a trial.
It is anticipated that this level of up-front clarity and disclosure may result in many disputes being resolved; but if not, they would receive human attention.
This would almost certainly include an opportunity for mediation. Under a current, limited system, litigants in small claims are encouraged to use a free, telephone-based mediation service. A small national team of only 14 mediators achieve a remarkable current success rate in settling 70% of the cases referred to them. Unfortunately, despite conducting up to five of these simple mediations a day, only about 35 to 40% of the national demand is currently met.
Ultimately, of course, the system must encompass final determination by judges where necessary. These determinations could be on the documents (I nearly said “on paper”); by telephone; video conferencing; or (as a last resort) face-to-face, either in part of an inevitably much-reduced court estate or in “pop-up” or temporary courts set up in public buildings.
But Lord Justice Briggs does not see that as the most radical feature of the OC. “In fact the true distinguishing feature of the OC is that it would be the first court ever to be designed in this country, from start to finish, for use by litigants without lawyers.” Did you feel a slight chill just then? I did …
This really is a radical proposal. The OC will be a separate court, with its own rules; and its use will be compulsory for all cases within its competence – which will encompass all straightforward money claims up to £25,000, and personal injury cases below a certain limit (currently £1,000, but probably to be raised to £5,000). Litigants will be free to use lawyers, but if successful will not generally recover the costs of doing so.
What is envisaged is no less than a revolution: for litigants (including those who previously might have been deterred from litigating); lawyers; judges; court staff; and the general public, who will need to be educated about the law and its machinery. I don’t want to be accused of cynicism; such a revolution may well be possible. But – in five years?
In part 3, I’ll look at what this proposal might mean from the particular view of the litigant and the legal professional.
Finally, a thought for the day. According to the Review, “Leaving aside clarification of the law, the ultimate success of the civil courts would be fully achieved if, like the nuclear deterrent, they never had to be used at all.” What do you think?