What will the UK civil justice system look like in 10 years? According to the proposals, the vision is that it will be ‘just, proportionate and accessible’ (white paper, p4). No one could argue with that, and indeed we should all devoutly hope that the justice system will be ‘just’. What is causing controversy, though, is whether the MoJ has a clear vision for making this a reality. Ironically enough for a white paper and a joint statement which insist that the system must become more transparent, they are pretty obscure in their terms. There are serious concerns that the proposed reforms may well make justice less accessible, less just, and will not do a great deal to help proportionality.
Obviously, there is nothing intrinsically wrong with looking at how digital systems can make justice easier to understand, quicker, and less expensive. Money claims constitute over 80% of civil court business in England and Wales, and 83% of those are uncontested.2 It is common sense to look at automating those claims so that lawyers, judges and, indeed, court space can be better used.
The joint statement says that there is going to be a ‘wholesale shift to accessing justice digitally’, but does not set out precisely how this is to be done in the civil courts, preferring to indulge in such questionable bromides as ‘our justice system is the envy of the world’ (p7 and p3 respectively). To get any concrete idea of what the new system might look like, we have to refer back to the Civil Courts Structure Review: final report by Lord Justice Briggs and its recommendation of a new ‘Online Court’ (see (2016) October CILExJ pp20–22).3
All cases, wherever and however they are to be heard, will eventually be issued and dealt with primarily online, so the Online Court’s distinctive feature would not be its digital presence; the unique selling point would be that it is a problem-solving court. Entry to the Online Court would be online only, and it would have exclusive jurisdiction over certain types of case.
The potential litigant would start by answering some basic questions about their case, and then would enter a digital triage process in which some advice is given about ‘their rights and what options are open to them’ (joint statement, p6). Litigants may have some help from the third sector or student volunteers, but then again they may not. To begin with, the new system will focus on money claims up to £25,000 and some small damages claims, but that is definitely not where it is to end.
In some cases, the advice given in triage may be to consult a lawyer. Lord Justice Briggs certainly believes that that should be part of the system, but nothing is fixed yet. There is no doubt, however, that initial advice at the point of entry is to be provided by the state’s ‘knowledge engineering’, even in Lord Brigg’s proposals (final report, p49). Independent legal advice is fading from the current scene at possibly the most important stage of any claim.
Lord Justice Briggs himself accepts that the triage stage will be ‘particularly vulnerable both to poor procurement and under-funding ’(final report, p50). This is a considerable understatement. If the claim falls within the Online Court’s remit, the only way to issue it is through this gateway. The litigant may be entirely reliant on this advice for their rights as well as their options.
There are serious concerns that the proposed reforms may well make justice less accessible … and will not do a great deal to help proportionality
However, this system is designed expressly to shut down disputes early and to keep business out of the courts. The risks are blindingly obvious. If the ‘knowledge engineering’ is flawed, litigants may well receive incorrect advice about their rights of action and the consequences for them could be severe.
In addition, the fixed costs regime is to be extended. The white paper claims that this will keep cases proportionate; however, we already know that fixed costs do not, in fact, prevent litigants with deep pockets from obtaining relatively expensive advice or conducting litigation oppressively in an attempt to put intense pressure on smaller opponents. It is praiseworthy that the joint statement says that ‘when they have to engage with the system, we want everyone to have available to them the finest justice system in the world’ and ‘the system must work for everybody’, but the proposed system is as open to abuse as the existing one (p3 and p11 respectively). Professional lawyers are good at manipulating IT systems to their advantage because they have extensive experience of them while, in general, litigants in person do not. If, on top of this, the quality of advice given to litigants in person is poor, how is equality of arms to be maintained? The dangers of creating a two-tier system are obvious and real.
Lord Justice Briggs suggests that the triage process will save court resources by weeding out hopeless claims, but then Briggs LJ also firmly supports built-in opportunities to obtain bespoke advice from a lawyer. There is no hard evidence so far that the MoJ shares his enthusiasm. The determined but hopeless litigant is not deterred currently by in-person legal advice: why would they be deterred simply by the computer saying ‘no’? If the IT system decides that there is no arguable case, will the court reject the claim by preventing it from being issued? Unless the triage system is very sophisticated, this might have the effect of stopping deserving cases from accessing the system.
After the triage stage, the system will organise the evidence and prepare a claim or defence, on the litigant’s behalf, using the answers they have given to the diagnostic questions. Once the pleadings are closed, the matter will then be referred to a case officer for case management, and to see if it can be determined on the papers (for example, if summary judgment is appropriate).
This is where problem solving comes in. The case officer will also consider whether the parties can settle their dispute with the court’s assistance, including e-mail exchanges and telephone discussions. If a party is aggrieved by a case officer’s decision, for example, a refusal to extend a time limit, there is an opportunity to take the matter to a judge. A pilot project for this stage (for case management in money claims) is operating currently at Salford County Court, and is due to end in November.
If the push towards settlement does not work, there will either be a disposal on the papers or a ‘tailored hearing to resolve the issues on which the parties remain in dispute’ (joint statement, p11). In-person hearings ‘will only be needed when there is no other alternative’ (joint statement, p6). Physical courtrooms will be used much less. The programme of court closures and sales will, therefore, continue with, we are told, revenue from the sales put back into the system.
It may all work superbly, giving members of the public sound and structured advice about the solutions to their problems; however, there are a number of very significant dangers, and the vagueness of the current white paper’s proposals is a serious concern. Truly independent legal advice is likely to become a rarity at the point of entry to the system. Whether or not this matters depends on the quality of the ‘knowledge engineering’, but the omens are not particularly good.
In spite of the paper’s modish rhetoric: ‘we want to build on simpler consumer-focused models’, and the frequent comments that a population used to conducting business online expects to be able to litigate online, scant evidence has been published to show that there is a significant public appetite for virtual justice (joint statement, p11). Lord Justice Briggs himself reported that litigants in person disliked telephone hearings and wanted to have their day in court (final report, p52).
The cost of the digital programme to invest in and modernise the courts and tribunals is over £700m. It is an inherently risky endeavour. As Lord Justice Briggs himself says, there is no digital justice system on this scale operating anywhere in the world.
So, it is regrettable - if unsurprising - that the joint statement and white paper do not address the question of whether some of this money would be better spent on legal aid rather than betting everything on the great unknown. For better or for worse, the prestige project has been chosen: whether Lord Justice Briggs’ own vision can be fulfilled remains to be seen.