Giving the first of three annual talks on the creation of the online court, Joshua Rozenberg painted an optimistic vision of a future in which civil litigation would become fast, efficient and affordable to all. Surveying the chequered history of courts modernisation over the last 30 years, he explained why it was hoped this particular government IT project would succeed where so many others seemed to have failed. The talk was largely drawn from Joshua’s recent e-book, The Online Court: Will IT work? Paul Magrath was there and has read the book.
Digital by default
By the year 2022, most civil disputes in England and Wales will be resolved through an online court.”
This is the “breathtakingly ambitious” prediction with which Joshua Rozenberg QC began his Gresham College talk at the Museum of London on 22 February 2017. It’s also how he begins the latest (2017) edition of his ebook The Online Court: will IT work? (Kindle editions, £3.99). However, I note that in my 2016 edition of the book (which was only £1.99), he prefaces the same prediction with the words “By the year 2020…” That suggests a certain amount of slippage. (Let’s hope there isn’t a similar doubling in the cost of the programme!)
The extension of the timeframe by two years may well have another explanation — expansion of scope. For it’s clear that what is ultimately envisaged goes much farther than the relatively modest low value dispute resolution and summary offence processing system that was the subject of the recent Transforming our justice system: consultation, the government response to which was published earlier this month (see Weekly Notes –13 February 2017).
In fact there are a number of related justice modernisation projects all taking place under the general umbrella of something called HMCTS Reform. HMCTS is Her Majesty’s Courts and Tribunals Service, an executive agency of the Ministry of Justice (MoJ). The programme as a whole has been promised a budget of over £1bn. This is a massive sum to commit at a time of austerity, but if it succeeds it will save something like £250m a year by eliminating many of the costs of running a paper-based bricks and mortar court system. It also compares favourably to the £10bn said to have been wasted on a failed NHS patient records IT system.
“Gone are the days of single, large scale, beginning-to-end government IT projects handed to multinational IT consultancies” HMCTS’s digital director Kevin Gallagher said last year. The new approach is described as “agile development”, which means building and testing in small steps, with intense involvement and feedback from users. (Another way of describing it is “fail fast and fix” — which reminded me of Samuel Beckett’s famous line, “Fail again. Fail better.” Let’s hope instead we succeed fast, and better.)
But succeed we must, if we are to break the cycle of the past.
When Lord Woolf was Lord Chief Justice from 2000 to 2005, he wanted court officials to install IT in the civil courts as part of his civil justice reforms. They set about wiring the courts at enormous expense, but then ran out of money and could not complete the job. Meanwhile the wiring became completely redundant once everyone had wifi. But as Joshua Rozenberg explains,
One reason why attempts to introduce IT in the courts failed so badly around the turn of the century was that the judges had no effective voice in running the courts in which they sat.”
All that has changed with the establishment of HMCTS and the involvement of the judiciary in its leadership and in the management of the Reform programme.
The Reform programme is not just about paperless courts. An online system can do much more. It can provide online case-tracking and case management; it can create and use an electronic case file to store all the documents associated with a case, which can be filed online by each of the parties or their representatives, and stored in the cloud without the need for a secure court building.
Criminal trials, with witnesses and physical evidence examined before a jury, will still need to be held in traditional court rooms; but the paperwork can be stored and accessed via computer, as can video evidence, as Joshua Rozenberg demonstrated with some recent pictures of an electronically equipped Crown Court where, using something called a ClickShare dongle, everything can be relayed from laptops onto a big flatscreen monitor on one wall. (This monitor actually worked, unlike the chronically faulty video links described in a recent rant by Sir James Munby, President of the Family Division, who recalled one monitor in which everyone appeared all blue, like the film Avatar; and another, where everything looked a sub-aqueous shade of green.)
But preliminary hearings can be conducted by conference call, obviating the need for advocates to be physically present with the judge in court; and pleas of guilty and the imposition of lower level penalties can be dealt with online. Subject to that, criminal justice will continue much as it has done since Victorian times. The real difference will be in civil justice, whose transformation, according to the current Lord Chief Justice, Lord Thomas, will “achieve the most radical reform since 1873” (which saw the fusion of law and equity, and the consequent reorganisation of the courts and their procedure).
A court without lawyers?
Though IT will provide the means for the transformation of civil justice, the philosophical backing for it came principally from the Briggs Report commissioned in 2015 and published last year. This recognised that the great strength of the civil courts of England and Wales lay in the excellence of their judiciary but the great weakness lay in the fact that hardly anyone can actually afford to use them. The problem was that the courts had been designed by lawyers, for lawyers. With the large-scale withdrawal of legal aid, many were left to represent themselves as litigants in person, or forego justice.
But for the first time there was now an opportunity to ‘design from scratch and build from its foundations a wholly new court for the specific purpose of enabling individuals and small businesses to vindicate their civil rights in a range of small and moderate cases … without recourse of lawyers or with such minimal recourse that their services can sensibly be afforded.”
In fact the system would not do away with lawyers altogether. For example, a claim by a consumer against a business defendant would be handled by lawyers on the defendant’s side; and the claimant might still obtain “unbundled” advice on the prospects of his claim without needing lawyers to manage the actual litigation. That would be covered by imposing fixed costs on the losing side.
But the online court would not require lawyers to manage the process of litigation. Instead, the system would provide an online “decision tree” questionnaire to enable the user to classify and formulate the legal and factual issues in dispute. This could be done on a desktop or laptop, tablet or smartphone, using downloaded software or a dedicated app.
The online procedure could also provide basic legal guidance, and indicate sources of free or affordable advice. (My own thoughts at this point were on access, should it be necessary, to primary sources such as statutes and case law. But I foresee an opportunity for some enterprising vendor of easy to use legal advice triage systems such as are available in other jurisdictions: see, for example, this article about Victoria Legal Aid’s online triage tool. Here is the actual tool, currently in a fairly embryonic state.)
Supporting evidence can be scanned and filed online. For most claims, the process of filling in the online forms will help to clarify what the claimant wants, and the exchange of claim and any response may be enough to arrive at a settlement. That would be the first stage. Case management and some sort of mediation provided by a legally qualified case officer, acting under judicial supervision, will constitute the second stage of the process. If no settlement is achieved, the case will proceed to the third stage, in which the court either resolves the case without a hearing, or a hearing will be arranged, perhaps by telephone or video conference (Trial by Skype as it has been called, or perhaps FaceTrial would be more appropriate). If necessary, seemingly as a last resort, there would be a physical hearing, with all parties present in one room (though some witnesses might give evidence by video link).
It’s clear that what’s currently under development will be only a first phase, and that once bedded in and tested the online court will be developed to handle ever more complex disputes. When that happens, the system will need to accommodate not just electronic filing and exchange of documents and evidence, but also the exchange of legal materials such as the contents of “authorities bundles’ — those over-stuffed lever arch files full of printed PDFs of law reports and statutes so beloved of the clerks who have to heft several sets of them to court in trolleys.
A court without reporters?
The days when law reports were fetched off the shelves in the court by the usher and handed up to the bench are long gone; so, soon, may be the days when legal argument is presented orally in a victorian oak-lined courtroom in the RCJ. But — and this was a question I asked Joshua at the end of the lecture, where is the press bench in the online court, and where does the law reporter sit?
The answer he gave was much the same as that given by Lord Justice Fulford in his lecture last year on the Rise of the Cyber Judge: there would be “viewing booths” in court buildings (those that haven’t been sold off, presumably) where press and public could view ongoing trials, to the extent that anything viewable was going on. But eventually it should be possible to view proceedings and access court records from anywhere. It should be no more dependent on physical location than the process of litigation itself.
I can see there might need to be some form of access control; registration, for example, and the giving of a solemn undertaking, on pain of imprisonment for contempt of court, not to record or share the data. But in general, my feeling is that open justice and transparency, media and law reporting, and the ramifications of public access to court records for rehabilitation of offenders and data protection all need to be given a bit more thought — and proper public consultation.
The Prison and Courts Bill
By happy coincidence, Joshua Rozenberg’s talk took place on the eve of the publication of the new legislation intended to give effect to the online court development. The Prison and Courts Bill (originally titled the Prison and Courts Reform Bill) is described in its introduction as a Bill to
make provision about practice and procedure in courts and tribunals, organisation of courts and tribunals, functions of the judiciary and of courts and tribunals and their staff, appointment and deployment of the judiciary, and functions of the Judicial Appointments Commission…
It also makes provision for a shakeup of the prison system, and for the capping of personal injury whiplash claims, both of which will probably get more airtime in the immediate future.
Read the Bill (PDF).
Follow the progress of the Bill.
For more on the online court, see also Judith Townend’s report, via the Transparency Project, of a discussion last week at the UCL Judicial Institute: Online courts: What’s the ‘human’ impact?
This review was written by Paul Magrath, Head of Product Development and Online Content at ICLR. He tweets as @maggotlaw.