‘Navigation without lawyers’: access to justice and the online court
Diane Astin sets out the key features of the controversial online court proposed by Lord Justice Briggs.
Case officers will play a central role in the online court. Briggs LJ has been persuaded that they should have some form of legal qualification.
In his Civil courts structure review: final report
(Judiciary of England and Wales, July 2016; references are to this report unless otherwise noted),1The review addressed a range of issues in addition to the online court. The final report does not recite all of the final conclusions, so must be read in conjunction with Civil courts structure review: interim report, published in December 2015.
Lord Justice Briggs has recommended the creation of an online court. The proposal is not about digitalisation of the current system, but ‘a new, more investigative, court designed for navigation without lawyers’ (page 36, para 6.2). It is based on the premise that, for claims below a certain value, the cost of instructing lawyers, plus the risk of an adverse costs order, is a deterrent to using the civil justice system to obtain redress. Briggs LJ puts the threshold at £25,000. What he proposes for claims below that value is a new court with its own simplified rules, under which contested claims may proceed through three stages: (1) online triage; (2) conciliation; and (3) adjudication. Case officers will undertake active case management and may facilitate any conciliation undertaken. The processes are to be designed for use without lawyers, although using a lawyer will not be prohibited (as they are in the Civil Resolution Tribunal in British Columbia, which deals with small claims in a similar way). However, the usual costs shifting rule will not apply. Instead, there will be a system of fixed recoverable fees similar to the costs regime under the small claims track.
Early in the final report, Briggs LJ identifies and responds to what he describes as two common misconceptions. The first is that the online court will provide second-tier, second-class justice to those wrongly viewed as having less important claims. As he acknowledges, £25,000 is at least as much as the average person’s annual take-home pay and he asserts that: ‘It is precisely because claims are of such importance to ordinary litigants, and currently cannot be litigated at proportionate cost using lawyers, or satisfactorily without representation, that the large effort and investment to create an online court is being made’ (page 38, para 6.7). The second misconception is that the online court will only provide online dispute resolution (ODR). While ODR is one of the conciliation options, Briggs LJ maintains that all decisions about substantive rights will be made by judges.
How will the online court work?
Stage 1: triage
Stage 1 will be ‘automated interactive triage designed to enable [litigants in person] to articulate their case’ (page 41, para 6.23) (though if lawyers are instructed, they will be able to bypass this process). In addition to assisting an individual to frame the claim (or defence), the online process will prompt the uploading of key documents. At this stage, ‘commoditised’ legal information will be available, ie ‘a description of the basic legal principles applicable to the litigant’s dispute, rather than advice tailored to [the] particular facts’ (interim report, page 77, para 6.9). The success of this stage will depend on the design of the software, particularly the extent to which the interactive process translates the information inputted into a comprehensible claim, and how much the user will be expected to apply the generic legal information.
By ensuring the claim and response, plus the key evidence, are online it will no longer be necessary for paper files to be kept in specific court buildings or for hearings to take place at specific courts. Indeed, it is envisaged that face-to-face hearings will be the exception rather than the rule.
It is recognised that many individuals need help to use digital resources, and Briggs LJ recommends ‘an intensive search for funding and development of assisted digital resources’ (page 118, para 12.15.6). In the interim report, there was a suggestion that ‘pro bono’ services might provide this assistance, but it seems Briggs LJ has been persuaded that funded services are needed. Among the final conclusions, he recommends that ‘serious consideration should be given to funding the voluntary agencies to expand their services to meet this requirement, as an alternative or supplement to a service provided from within [HM Courts and Tribunals Service (HMCTS)]’ (page 118, para 12.15.6). There is a real opportunity here for the voluntary sector to provide ‘digital hubs’ to assist individuals who are increasingly required to communicate with state agencies online. Such a space could also enable face-to-face advice on a range of legal issues.
Stage 2: conciliation
Briggs LJ rejects the term ‘alternative dispute resolution’ on the basis that the conciliation stage will be central to, and not an alternative to, the process of dispute resolution. As he previously put it, this stage ‘is mainly directed to making conciliation a culturally normal part of the civil court process rather than, as it is at present, a purely optional and extraneous process’ (interim report, page 78, para 6.13). However, it will not be compulsory.
Here, the role of the case officers will be key. It will be their task to identify and recommend to the parties the conciliation method best suited to their case. The options could include ODR, assisted negotiation, telephone or face-to-face mediation, and judicial early neutral evaluation (ENE). Briggs LJ’s view is that ENE should be carried out by judges and not case officers.
Stage 3: determination
If stage 2 does not result in settlement, there will be a determination of the issues by a county court judge. The online court will not do away with live hearings before a judge but there will be no default assumption that a live claim will be settled at a traditional face-to-face trial. Instead, the traditional trial is to be regarded as a last resort if the alternatives of resolution on the documents, by telephone or video conference are deemed unsuitable. A face-to-face hearing could be confined to the determination of particular issues, where, for example, live evidence and cross-examination are required.
Although the case officers will undertake much of the case management, only judges will make final determinations, whether on the basis of the online information, by telephone or after hearing live evidence.
Case officers/case lawyers
Case officers will play a central role in the online court. Not only will they do some of the work currently done by judges (routine case management and ‘box work’), but they will also recommend, and conduct, some of the conciliation processes. In the interim report, Briggs LJ proposed that these officers be recruited from the back room staff of the court offices. However, in the final report he has been persuaded that the case officers should have some form of legal qualification. In fact, the title Briggs LJ recommends is ‘case lawyer’, and they are to be trained and supervised by judges and answerable to the Lord Chief Justice, though employed by HMCTS. Their decisions will be subject to review by judges.
Compulsory or optional?
Ultimately, the online court will be compulsory for all claims below a certain value, with specific exceptions. The proposed threshold is £25,000 but it is suggested that in the initial phase the threshold is set at £10,000 or, alternatively, that it is only compulsory for certain types of claim.
New court, new rules
Briggs LJ proposes that the online court should be a new and separate court, not part of the county court, but he records that the Ministry of Justice (MoJ) is undecided on this point. It will be regulated by new, simplified rules to be drafted by a new online court rules committee and not governed by the Civil Procedure Rules.
Claims excluded from the online court
By 2020, all money claims (both for specified and unspecified amounts) up to the value of £25,000 should be brought in the online court, save for the following:
•Claims for possession, including those accompanied by a money claim. However, the recommendation is that these be excluded ‘at least initially’ (page 119, para 12.15.16).
•Personal injury claims (including clinical negligence) that would otherwise fall within the fast track or multi-track (ie those over the small claims limit, currently £1,000). However, there may be provision for the voluntary admission of small claims personal injury claims.
•Professional negligence claims (non-clinical). This is on the grounds of ‘typical complexity and asymmetry’. Interestingly, it is suggested that this will be ‘at least until a means of having them determined by specialist judges in stage 3 of the online court can be developed’ (page 119, para 12.15.18).
•Intellectual property claims. The rationale for this exclusion is the existence of the specialist Intellectual Property Enterprise Court with its own small claims track.
•Disrepair claims. Claims including an order for works and claims brought as counterclaims to possession actions are to be excluded. For damages-only claims, it is proposed that these should not be required to be brought in the online court but that tenants should have the option of doing so.
The online court will be subject to a fixed recoverable costs regime. This should be designed, it is said, to provide an economic model for the provision of early, affordable advice to would-be litigants on the merits of their claim or defence. It is anticipated that this would be on an ‘unbundled’ basis, ie a fixed-price service to give initial advice, the cost of which could be recovered in the event of success. It remains to be seen whether it is possible to provide sufficiently comprehensive advice at this stage that is truly ‘affordable’ and whether those embarking on litigation will be convinced it is a worthwhile expense.
Otherwise, the costs regime is to be modelled on the small claims track, with only fixed fees and specified expenses being recoverable, save in cases of misconduct. However, the possibility of fixed recoverable costs for ‘skilled cross-examination’ where needed is also mooted.
Will the court be a success?
It seems inevitable that interaction with the courts will soon be predominantly by digital means. Whether this increases access to justice will depend on how the IT is commissioned and whether sufficient resources are committed to its ongoing maintenance.
Not only does the government have a poor track record when it comes to commissioning major IT projects, but its current performance in updating online legal information and court forms is lamentable. On the government legislation website (legislation.gov.uk) there is no attempt to keep the statutes updated. At present, most legislation appears only in its original form, even when it has been substantially and repeatedly amended. Court forms, which can already be downloaded from the MoJ website, are also not updated in a timely fashion to reflect changes in the law. For example, the claim and defence forms under the accelerated possession procedure have not yet been amended to refer to new rights for assured shorthold tenants introduced almost a year ago. This is not a minor omission: the forms are central to one of the few processes under which orders are made without hearings; they must be designed and updated so as to reflect the legal rights of the parties. This does not bode well for an online system covering a wide range of legal relationships.
The stated aim of HMCTS is ‘to run an efficient and effective courts and tribunals system, which enables the rule of law to be upheld and provides access to justice for all’. If these proposals are implemented in good faith, with this commitment in mind, there is a real opportunity to improve the current situation. Briggs LJ recognises the valuable role the voluntary sector could play in both helping to design the system and providing ongoing help to court users. We must hope that the government accepts his exhortation to undertake the ‘intensive search’ for funding he identifies as necessary to ensure that an adequate level of assistance is available and that the systems procured are properly resourced and maintained. ■