In the final part of this article, I want to took in a little more detail at some of the potential issues that the proposed Online Court may raise for litigants and legal professionals.
But first, the quotation I left you with at the end of part 2.
“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.”
Here’s my thoughts. Given that in a common law system, the clarification of the law only comes about through decisions in individual cases, the proviso “leaving aside …” rather renders the rest of the sentence meaningless. But even without that, to compare the civil courts with the nuclear deterrent is, to say the least, superficial. One hopes – and prays, and votes – for the person on the nuclear trigger to be both rational and well-advised. (We do, don’t we?) Not all litigants are rational – at least, when it comes to their case; and, litigants-in person (for whom the Online Court is to be designed) are ex hypothesi not as well-advised as they might be. And even if they were, rational and well-advised people will still – through their frailty, others’ opportunism or just the infinite vicissitudes of life – have disputes for the resolution of which it is in society’s interests to have an independent arbiter.
Right; as the French say, let us return to our sheep.
First, the litigants. The Review accepts that digital exclusion is an issue, and acknowledges the need for Assisted Digital – through telephone or face-to-face assistance. But how great is that need?, you ask. Greater than you might think; current estimates suggest that well over 50% of current litigants-in-person are likely to find the use, or even ownership, of computers challenging.
But the problem goes deeper than that.
“The starting point is that there is no conceivable form of litigation process which will not be a challenge to a significant class of litigants without lawyers. Many LiPs find themselves tongue-tied when required (or permitted) to address the court orally. Many of them prefer paper, but they struggle when unaided, and presented with a blank page, to achieve focus on the essentials which need to be communicated. Many find it very hard to marshal their documentary and other evidence. A significant number have learning or language difficulties which make any form of meaningful communication about a complex subject-matter difficult, regardless of the format.”
While there may be many who will find that the interactive process of the Online Court will be of real assistance in enabling them to navigate their way through a dispute, there will still be a significant class with specific challenges in using computers rather than paper and post. They will include the still large number of those living mainly in rural areas with no access to broadband, those who cannot afford a laptop or desktop computer, and those who for a variety of understandable reasons regard moving to computer after a life spent communicating on paper a step too far.
The suggestion of designing all online processes for phones and tablets is, of course, necessary (you would hope, indeed, a no-brainer); but it is by no means sufficient. Much more work needs to be done to ensure that those most likely to have litigable disputes – who, as I previously noted, are also those most likely to be among the digitally excluded – will have full and non-discriminatory access to the Online Court.
And what of the lawyers? It’s fair to say that the proposals have not been universally welcomed by legal professionals. “It will just be an expensive disaster”, said the Young Bar. The Review wryly adds that it “cannot entirely exclude the possibility that self-interest may have motivated some commentators.”
Now, we are told that it is not a design objective of the Online Court to exclude lawyers; merely that the Court should be as far as possible be equally accessible to both lawyers and LiPs. But it is recognised that a costs regime precluding the recovery of legal costs may destroy the economic model which currently underpins a high level of legal representation for the pursuit of modest claims, and bring about a lawyer-free Online Court by economic means. It is also recognised that everything possible should be done to construct an economic model which encourages qualified lawyers to offer, and litigants to seek, early bespoke advice on the merits of their cases (claims or defences) before pursuing or defending litigation in court.
It is argued that a recoverable costs regime is, on its own, by no means a clear promoter of access to justice. In particular, it contains two elements which tend to do the exact opposite. The first is that the risk of having to pay the opposing party’s costs is a powerful disincentive to going to court at all, particularly in the pursuit of small to moderate claims. The second is that the prospect of recovering costs from the opposing side is, it is said, a powerful economic incentive to lawyers driving up the cost of litigation. An appreciation of the truth of those two points lies behind current moves to bring about a large increase in the areas of civil litigation covered by a fixed recoverable costs regime.
It is, however, considered that the regime of fixed recoverable costs in personal injury cases, combined with QOCS – “qualified one-way costs shifting” (whereby a losing defendant pays the claimant’s fixed costs, but generally a losing claimant does not pay the defendant’s costs) has improved access to justice. In the light of that, and for fear of something worse, the Review has shied away from proposing that no legal costs be recoverable in the Online Court. It suggests that some fixed costs be recoverable for early advice on the merits of a party’s case, and for representation and advocacy at trial. There is, of course, no suggestion of the level of those costs; but they will be, at most, the minimum necessary.
It is enough to make one feel like the proverbial soul who lost a shilling and found a sixpence. A tiny crumb of comfort, perhaps, but there is much work to be done to ensure that a working business model can be created to sustain what is, after all, a necessary part of the service economy. Oh, and to ensure that litigants get the advice and representation they so desperately need.
The man of letters E M Forster published a collection of essays under the title “Two Cheers for Democracy”. How many cheers would you give the Online Court? And honestly – have you given your score as a lawyer or as a citizen?