An online court has the potential to revolutionise access to justice but it should not be rushed
For a justice system better known for its glacial pace of change, the online court (OC) project is proceeding at lightning speed. In less than a year, the OC has progressed from an idea to something with the cash to make it happen. A potentially revolutionary innovation in increasing access to justice has been juxtaposed with a government determined to reform the courts system. However, there are concerns within the legal profession over a proposal to cut lawyers out of the new system and the politicians’ motives in backing the idea.
The OC was first proposed in February last year when the Civil Justice Council (CJC) published its report on online dispute resolution (ODR).1Online dispute resolution for low value civil claims, Civil Justice Council, February 2015.
In December, justice minister Lord Faulks signalled the government’s determination to press ahead with ODR as part of its £700m investment in court reform, announced in the autumn statement (see ‘“Age of legal aid has passed,” delegates at litigants in person conference told’ February 2016 Legal Action
The CJC report argues that ODR is not ‘science fiction’ and points to examples of it being used around the world, including the Traffic Penalty Tribunal (TPT) of England and Wales. The TPT web-based portal is used by the public and other parties in disputes over parking penalty notices issued by local councils. It went live in September 2014.
The portal and its integrated case management system, known as BECK (Best Evidence Cloud Knowledge), enable parties to upload evidence and complete appeal cases online. The adjudicators, who make the decisions in the appeals, are qualified lawyers with at least five years’ experience. They can conduct the case completely online from the initial letter of appeal to decision. Crucially, all data input is undertaken by the parties, which frees up administrators to assist people with problems accessing the online system.
The new court is in danger of looking like a convenient smokescreen for the closure of conventional courts and tribunals.
Lord Justice Briggs, in his interim report on the civil courts structure review, published in December 2015, has adopted the idea of the OC.2Lord Justice Briggs, Civil courts structure review: interim report, December 2015.
He recommends ‘a separate court with separate rules’, which would deal with cases initially up to the value of £10,000 and eventually £25,000. Most controversially, he proposes that the new OC will be lawyer-free and do away with the adversarial approach to resolving disputes (initially only money claims).
Briggs LJ, drawing on suggestions made in the CJC report, proposes a three-stage process for the OC. The first would work like the BECK system. The parties would upload documents setting out their case and defence, as well as any evidence. In the second stage, a case officer from the court would manage the preparation of the case and try to conciliate between the parties. This case officer would not be legally qualified. If the case was not resolved, it would be determined in a third stage by a judge on the papers, via telephone, the internet, or in a face-to-face hearing.
Judges and lawyers have expressed concern to Legal Action that the use of unqualified case officers runs the risk of creating a second-class, low-quality civil justice system. They are suspicious that the OC proposal is more concerned with delivering savings than increasing access to justice. The new court is also in danger of looking like a convenient smokescreen for the closure of conventional courts and tribunals.
A crucial stage in establishing the OC will be the drafting of its rules. Briggs LJ wants these to be written independently of the Civil Procedure Rule Committee by non-lawyer agencies, which deal with litigants in person. This shows a surprising lack of confidence in his fellow lawyers, as they will have only minimal involvement in creating user-friendly and accessible rules for the new court.
Potentially, the OC could provide greater access to justice for the many people who currently believe the courts system is too costly, too complex and too time-consuming to bother pursuing a case in. To achieve this, though, the government would be best advised to adopt a big tent approach to establishing the OC, including the drafting of its rules and processes. This would involve the oldfashioned testing of ideas through discussion and consultation with the legal profession, consumer groups and other interested parties. To adopt any other approach could see the government acting in haste and repenting at leisure, such is the potential for the project to flounder on unforeseen legal, bureaucratic and technological rocks. ■