The great hall in the Royal Courts of Justice has a cathedral-like splendour by day, but on a freezing midwinter evening its dim chandeliers failed to dispel the cavernous gloom. It was here that a crowd of some 62 legal professionals gathered on the evening of Monday 11 December, to hear about the latest developments in Her Majesty’s Courts and Tribunals Service (HMCTS) Reform programme. Paul Magrath of ICLR was there.
Though fortified with welcoming tea and coffee, most of us kept our overcoats on as we huddled around tables arranged in front of a big screen where Susan Ackland-Hood, CEO of HMCTS, made a presentation about progress so far and the three main topics about which our feedback was sought this evening.
Earlier, we’d had the chance to see demonstrations from a number of live projects including:
- The Common Platform (a criminal end-to-end case management product);
- the online resolution of civil money claims;
- the online application and digital case management for probate applications;
- the online submission and tracking of social security and child support claims.
The one I was particularly interested to see was the online applications for divorce. This demonstration showed how a divorce petition could be filed online going through a simple form.
It asks, for example, if the marriage has “irretrievably broken down”, which reflects the language of section 1 of the Matrimonial Causes Act 1973, but then adds in brackets “(it can’t be saved)” which may a lot easier for most people to understand. The next screen invites the petitioner to identify the factual basis demonstrating the irretrievable breakdown, eg behaviour, adultery, separation etc. It asks the date of the marriage and, if that is less than 12 months previous to the current date, it will not accept the petition. There are boxes to enter the names of husband or wife, and a mechanism for uploading copies of, eg the marriage certificate.
It’s all very simple, but it’s designed to replace an uncontested procedure that is already done on paper. It’s certainly not “divorce at the touch of a button” as some critics have suggested (though no doubt the media will still call it a “quickie divorce” if it’s uncontested). If a divorce is defended (ie opposed by the other party), the online process still allows the petitioner and respondent to track the case online, though there may then need to be live hearings to determine questions of fact and evidence.
There were three critical issues on which Susan Ackland-Hood gave her presentation, and we were then invited to discuss around each table and give feedback to the management team:
1. Virtual Hearings
This is something a lot of people are worried about. HMCTS say “We will not mandate virtual hearings. These will only take place where the court or tribunal considers that it is in the interests of justice – for example they won’t be used for criminal trials.” Instead, what seems to be envisaged is the use of virtual (or video conferencing) hearings for preliminary or administrative hearings, rather than actual trials.
For example, in October the Virtual Hearings (VH) project ran proof of concept tests within Immigration and Asylum Tribunal Case Management Hearings, where eight hearings were successfully conducted using VH technology. However, on the final test day, four actual hearings were conducted using full VH technology, involving legal professionals and three leadership judges. Feedback from the judges (as reported by HMCTS) seemed positive, especially as to the benefits of VH for case management hearings.
The response of those attending the event was more mixed. Most thought VH would be good for preliminary or case management hearings; but were less sure about anything involving the live human evidence giving. That’s because there are ways of assessing evidence given in person in a live environment which cannot be matched in a remote set-up.
[Incidentally, in his recent press conference, the Lord Chief Justice, was asked about virtual hearings and had this to say, more about the terminology than anything else:
I personally dislike the term “virtual hearings” because that rather gives the impression that people will be sitting at computers in rather the same way that those who enjoy gaming online can go and sit in London playing a game with someone in Alabama. That is simply not what is going to happen. Rather than virtual hearings, these are going to be hearings enabled by video and telephone.
We have written up that press conference in a separate blog post, here.]
2. Flexible Operating Hours
HMCTS say “we have not made any decision about whether or not flexible operating hours will be rolled out, and our business case for reform does not depend on having flexible hours”. Despite this, the very prospect of FOH, as it is usually abbreviated, has caused consternation among lawyers, in particular.
The general idea behind FOH is to make better use of court buildings and facilities to provide a justice service outside traditional court hours. It would mean courts starting at 8 am instead of 10, and finishing at 7.30 or 8 pm instead of 4.30. Work would be divided between early and late sessions, so no one would need to work the full range of hours.
While starting early or finishing late might not be inconvenient for a party or witness, or member of the court staff, it would add to the already extended hours of litigation lawyers, who spend time before and after court sessions working on papers, meeting clients or preparing for future hearings. In addition, they might have to juggle child care arrangements, travel and social life to fit around what would inevitably become a longer working day.
HMCTS is aware of these and other objections. It has already postponed the pilot scheme it had planned earlier this year, in order to put in place a really robust evaluation process. But it insists on the need to make a decision about FOH on the basis of evidence, and accepts that if the evidence shows that it wouldn’t work, it will not implement FOH. In a sense, it is “putting the legal profession to proof”.
The view of the delegates seemed to be that flexibility in the working day might suit some lawyers, but the chances of managing court appearances to avoid doing both early and late sessions were low, especially with the current unreliable listing arrangements, and the main benefit of FOH would be in maximising the use of courts and judicial resources. There was also a view that, if introduced, hearings outside the traditional 10–4.30 court day would work best for case management or costs hearings, rather than for substantive trials.
3. Scheduling and Listing
“Listing and the deployment of judges are, and will remain, judicial functions” say HMCTS. The project is not looking at changing policies, so much as making the system more responsive and allowing “better, data-supported decisions on how heavily to list to avoid wasting the time either of judges, or of those coming to court.”
As with FOH, the intention is to make better use of expensive resources like courts and judges. For lawyers, however, the benefits of this project are much more obvious. One often hears complaints about cases being adjourned at short notice, with parties and witnesses, sometimes victims of crime, having to be turned away and made to wait, sometimes months, for another hearing day. HMCTS say they are aware that “late publication of lists, and clashes between cases being heard in different courts, can cause problems for legal professionals.”
The general view of the users present was that listing was something that could be improved with better use of data and, say, electronic access to the working diaries of lawyers and others affected. The days when clerks had to troop across the road to the law courts for what was in effect a listing hearing, or everyone bring their diaries to a case management hearing, should be long gone. If hearings were needed, they could be done virtually.
Another observation was that better listing would either obviate the need for longer court hours, or make them a lot more effective, and that it might make better sense to postpone the FOH pilot until the listing had been brought up to date and into the digital era.
Though one might be sceptical of the benefits of certain aspects of the Reform programme, there’s no denying the breadth of the issues it is tackling in what amounts to a complete overhaul of the administration of justice. The fact that such root and branch reform is being conducted within the context of a continuous feedback loop can only be a good thing. A project which wants to introduce flexibility and responsiveness into the system must itself be flexible and responsive as it develops. These roadshows are proof of that. If you have the chance to get involved, it is well worth doing so.
A version of this article first appeared in Lawyer 2B and is reproduced with thanks.
Susan Acland-Hood has also written a post on the Inside HMCTS blog, Successful reform roadshows – more dates announced…
“I am pleased to announce the next three legal professional reform roadshow events are to be held in in Birmingham (29 January), Winchester (5 February) and Leeds (19 February). We will publicise these widely to make sure as many people as possible have a chance to attend.”